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A  TREATISE 


ON  THE  WRONGS   CALLED 


SLANDER  AND   LIBEL 


THE  REMEDY  BY  CIVIL  ACTION  FOR 
THOSE  WRONGS. 


By  JOHN  TOWNSHEND. 

HI 


SECOND   EDITION. 


NEW   YOEK: 
BAKER,  VOORHIS  &   CO.,   PUBLISHERS, 

66    NASSAU    STREET. 
1872. 


?4S.; 


! 


T 
19 1U 


Entered,  according  to  Act  of  Coheres?,  in  the  year  eighteen  hundred  and  seventy-two.  by 

JOHN    TOWNSHEND. 

In  the  office  of  the  Librarian  of  Congress,  at  Washington. 


B  A  K  i:  R    £    GODWIN,    PRINTERS 
Printing-House  Square. 


•CI 


PREFACE 

TO  THE  SECOND  EDITION. 


It  was  my  good  fortune  to  be  called  upon,  very  much 
sooner  than  I  had  expected,  to  prepare  a  second  edition 
of  the  following  essay.  For  more  than  a  year  past  the 
first  edition  has  been  what  is  termed  "  out  of  print."  The 
rapid  sale  of  the  first  edition,  and  the  continual  demands 
for  copies,  is  a  gratifying  evidence  of  the  favor  with  which 
my  work  has  been  received,  and  a  sufficient  excuse  for  its 
republication. 

As  stated  in  my  former  preface :  warned  by  experience 
of  the  difficulties  in  the  law  regarding  defamation,  I  hoped 
by  means  of  this  essay,  to  mitigate  to  the  student  and  the 
practioner  the  obstacles  to  an  understanding  of  the  Law 
of  Libel. 

While  large  additions  have  been  made,  there  are  but 
few  modifications  of  the  propositions  as  originally  pub- 
lished ;  and  many  propositions  for  which,  in  my'  first 
edition,  no  direct  authority  could  be  cited,  have  been  since 
legitimatized  by  judicial  decision. 

In  preparing  this  edition,  I  have  had  the  advantage  of 
the  third  English  edition  of  Starkie  on  Slander,  by  Fol- 

67888 


4  PREFACE. 

kard,  published  in  1869  ;  but  as  the  work  has  not  been 
reproduced  in  this  country,  I  have  throughout  made  my 
references  to  the  second  American  edition  of  Starkie  by 
Wendell.  My  references  to  Holt  on  Libel  are  to  the 
American  edition. 

The  devotion  of  twelve  pages  of  appendix  to  some 
cases  deemed  important  and  not  of  easy  access,  will,  it  is 
believed,  be  generally  approved. 

As  the  major  part  of  the  additions  is  contained  in  the 
notes,  and  as  the  size  of  the  page  has  been  enlarged,  the 
increase  in  the  number  of  pages  (more  than  150)  but 
imperfectly  indicates  the  amount  of  new  matter. 

Solely  for  typographical  reasons,  I  have  departed  from 
the  plan  pursued  in  the  first  edition  of  numbering  the 
notes  consecutively  throughout  the  volume.  The  number- 
ing of  the  sections  has  been  retained  to  correspond  with 
the  first  edition.  The  index  has  been  enlarged,  and  the 
whole  work  has,  it  is  hoped,  been  improved. 


CONTENTS. 


Preface       .......  3 

Table  of  cases  cited         .  .  .  .  .11 

Table  of  references  to  reports  without  the  name 

of  the  case  prefixed  .  .  .  .  .41 

Table  of  works  referred  to,  exclusive  of  the  reports    .         43 

List  of  works  on  the   subject  of  libel,  in  addition 

to  those  referred  to  in  the  notes  .  .  .49 

PART   I. 

THE   LAW   OF   SLANDER   AND   LLBEL. 

CHAPTER  I. 

INTRODUCTORY. 

Language  as  a  means  of  effecting  injury — Slander — Libel — Defama- 
tion— Redress — The  Law  of  Libel — Object  in  view — Division  of 
subject — Attempts  to  define  Libel.     .....        57 

CHAPTER  II. 

HOW    ONE   MAY   AFFECT   ANOTHER   BY    LANGUAGE. 

Language  can  have  no  effect  unless  published— It  must  be  true  or  false, 
commendatory  or  discommendatoiy — Must  concern  a  person  or 
thing — Its  effect,  direct  or  indirect,  or  both — Reputation  .  .        78 


0  CONTENTS. 

CHAPTER  III. 

EIGHTS  ;     DUTIES ;     WRONGS  ;      REMEDIES. 

Description  of  Rights  and  Duties — Wrongs,  Rights  and  Duties,  unde- 
finable — What  determines  of  any  act  if  it  be  a  Wrong — Remedies — 
Injunction — Original  Writs  ......         83 


CHAPTER  IV. 

WHAT   IS   THE    GIST   OF   THE   ACTION   FOR   SLANDER   OR   LIBEL. 

History  is  silent  as  to  the  Introduction  of  the  Action  for  Slander — Hy- 
pothesis necessary — How  the  Law  protects  Reputation — Fiction — 
Pecuniary  Loss  the  Gist  of  the  Actions  for  Slander  and  Libel        .         95 


CHAPTER  V. 

WRONGFUL  ACTS.   ELEMENTS  OF  A  WRONG. 

Wrongful  Acts — Liability — Presumptions  of  Law — Questions  of  Law 
and  Fact — Essential  Acts  in  Slander  and  Libel — Defamatory — 
Falsity — Voluntary—  Involuntary — Intention— Malice        .  .       108 


CHAPTER  VI. 

FCBLICATION.       PUBLISHER. 

A  Publication  is  necessary — Meaning  of  the  term  Publication — The 
Language  published  must  be  understood — The  Publication  may 
be  Orally  or  in  Writing — What  amounts  to  an  Oral  and  what  to 
a  Written  Publication — Publication  of  Effigy — Requisites  of  an 
Oral  Publication — Requisites  of  a  Written  Publication — Time  of 
Publication — Place  of  Publication — Who  is  a  Publisher — Republi- 
cation and  Repetition.  Distinction  between — Joint  Publication — 
Liability  for  Publications — Voluntary  and  Involuntary  Publica- 
tions— Liability  of  Principal  and  Agent — Newspaper  Publisher — 
Bookseller       .  .  .  .  .  .  .  .       13G 


CONTENTS. 


CHAPTER  VII. 

CONSTRUCTION    OF   LANGUAGE. 

Actionable  quality  of  language  dependent  upon  its  construction — All 
language  ambiguous  or  unambiguous— Difficult  to  determine 
what  is  and  what  is  not  ambiguous — Points  upon  which  ambigu- 
ity arise — Causes  of  ambiguity — Ambiguity,  how  explained — Dif- 
ferent effects  of  Language  concerning  a  person  and  of  language 
concerning  a  thing — Materiality  of  questions,  what  person  or  thing 
affected,  and  whether  the  person  is  affected  as  an  individual 
merely,  or  in  some  acquired  capacity — Principles  of  construction ; 
before  verdict ;  after  verdict — Examples  of  construction — Divisi- 
ble matter.       ........       159 


CHAPTER  VIII. 

WHAT   LANGUAGE   IS    ACTIONABLE. 

Language  must  be  such  as  does  or  does  not  occasion  damage — What 
is  meant  by  actionable  per  se,  and  actionable  by  reason  of  special 
damage — What  language  concerning  a  person  as  such,  published 
orally,  is  actionable  per  se — What  language  concerning  a  person 
as  such,  published  in  writing,  is  actionable  per  se — What  language 
concerning  one  in  an  acquired  capacity,  is  actionable  p>er  se — What 
language  concerning  a  person  is  actionable  by  reason  of  special 
damage — What  language  concerning  the  affairs  of  a  person,  his 
property  or  his  title  thereto,  is  actionable.  .  .  .      202 


CHAPTER  IX. 

DEFENSES. 

Privileged  publications  generally  —  Repetition — Truth  —  Legislative 
proceedings  and  reports  thereof — Judicial  proceedings — Parties  to 
proceedings  —  Counsel — Witnesses  —  Judges — Grand  jurors — lie- 
ports  of  judicial  proceedings — Quasi  judicial  proceedings — Church 
discipline — Seeking  advice  or  redress  other  than  judicially — 
Giving  information  or  advice  generally — Attorney  and  client — 
Master  and  servant— Candidates  for  office  or  employment — Insan- 
ity— Drunkenness — Infancy — Accord  and  satisfaction — Previous 
recovery — Apology — Freedom  of  the  Press — Criticism.       .  .      318 


b  CONTENTS. 

CHAPTER  X. 

CORPORATIONS. 

Corporations  are  legal  persons — Their  rights  and  duties  assimilated  to 
those  of  natural  persons— Can  act  only  through  agents — May  carry 
on  business,  sue  and  be  sued,  and  are  liable  for  injuries  committed 
by  agents — Corporations  may  have  a  reputation — Language  con- 
cerning corporations — Actions  by  corporations  for  libel — Corpora- 
tions cannot  be  guilty  of  slander — May  be  guilty  of  libel.  .      455 


PART  II. 

REMEDY    BY    ACTION    FOR    THE    WRONGS    CALLED    SLANDER 

AND  LIBEL. 


CHAPTER  XL 

PROCEEDINGS   IN   AN    ACTION. 

Action,  how  commenced — Within  what  time — In  what  court — Attach- 
ment— Holding  defendant  to  bail — Execution  against  the  per- 
son— Security  for  costs — Consolidating  action — Place  of  trial — 
Inspection  and  discovery — Assessment  of  damages  where  no  an- 
swer interposed — Mode  of  trial — Struck  jury— Refusing  to  try — 
Compromise — Right  to  begin — Address  of  counsel — Reading  libel 
to  jury — Evidence  for  plaintiff — Abandonment  of  one  of  several 
causes  of  action  or  defense — Province  of  the  court  and  jury — 
Damages — Verdict — New  trial — Costs — Staying  proceedings  until 
costs  of  former  action  paid.    ......      463 


CHAPTER  XII. 

PARTIES. 

Question  as  to  parties  anticipated — Action  by  alien — Outlaw — Rebel — 
Executors    or    administrators — Married    woman-  Husband    and 
wife — Partners — General  rule  as  to  joinder — Action  against  hus- 
band and  wife — Contribution.        .....       497 


CONTENTS.  9 

CHAPTER    XIII. 

PLEADING.       THE   COMPLAINT. 

General  requisites  of  a  complaint — Complaint  for  language  concerning 
a  person  only — Inducement  —  Colloquium  —  Publication — Matter 
published — Innuendo — Special  damage — Several  counts — Supple- 
mental complaint        .......       503 


CHAPTER    XIV. 

PLEADING.       ANSWER.       DEMURRER. 

The  answer  corresponds  to  plea — What  it  must  contain — Plea  to  part 
of  a  count — Answer  of  justification  must  give  color,  show  a  lawful 
occasion,  and  deny  malice — Several  answers — Defense  of  truth 
must  be  pleaded — How  pleaded — Where  the  charge  is  general — 
Where  the  charge  is  specific — Certainty  in  statement  of  facts — 
Answer  of  justification  bad  in  part,  bad  altogether — Mitigating 
circumstances — Demurrer — Counter-claim    ....       546 


CHAPTER    XV. 

VARIANCE.       AMENDMENT. 

Allegation  of  pleadings  and  proof  should  correspond — Variance  in 
New  York — General  rule  as  to  variance — Immaterial  variance — 
Material  variance — Amendment        .....       565 


CHAPTER    XVI. 

EVIDENCE   FOR   PLALNTIFF. 

Proof:  of  publication  ;  of  oral  publication  ;  of  publication  in  writing  ; 
of  defendant's  liability — Opinion  of  witnesses  as  to  meaning — 
Proof  of  inducement ;  of  plaintiff's  good  reputation  ;  of  malice ; 
to  aggravate  damages — Falsehood  not  evidence  of  malice — Other 
publications  by  defendant ;  subsequent  publications ;  publication 
after  commencement  of  action — Defendant's  ill-will  to  plaintiff — 
Ill-will  to  plaintiff  of  persons  other  than  the  defendant — The 
publication  itself  evidence  of  malice — Attempted  justification  an 
aggravation — Evidence  in  reply        .  ...      582 


10 


CONTENTS. 


CHAPTER    XVII. 


EVIDENCE    FOR    DEFENDANT. 


What  evidence  is  admissible  depends  upon  what  plea  or  answer  is 
interposed — What  may  be  proved  under  the  general  issue — Evi- 
dence to  support  a  justification — Plaintiff's  reputation  in  issue — 
Inquiry  limited  to  plaintiff's  general  reputation,  and  to  his  repu- 
tation prior  to  the  publication  complained  of —Truth  in  mitigation 
— Conduct  of  plaintiff  leading  to  belief  in  truth — Report  or  sus- 
picion of  plaintiff's  guilt  in  mitigation — Plaintiff's  standing  and 
condition  in  society — Prior  or  subsequent  declarations  of  defen- 
dant— Heat  and  passion — Previous  publications  by  the  plaintiff — 
Controversies  between  plaintiff  and  defendant  prior  to  the  publica- 
tion— Circumstances  not  admissible  in  mitigation   . 


610 


Appendix 


Swadling  r .  Tarpley 
King  v.  Townsend  . 
Foote  v.  Rowley 
Martincre  v  Mackav 


886 

8SS 

641 
04-J 


Index 


04'.) 


TABLE    OF    CASES. 


A 


Abbey  v.  Lill,  583. 

Abrams  v.  Foshee,  215. 

Abrams  v.  Smith,  170,  325,  484,  563,  602, 

612. 
Absbire  v.  Cline,  238,  327,  328,  333. 
Adams  v.  Kelly,  149. 
Adams  v.  Lawson,245,  248,  251,  592,  598. 
Adams  v.  Miredew,  2S7. 
Adams  v.  Rankin,  235. 
Adams  v.  Rivers,  58. 
Adams  v.  AVard,  616. 
Addington  v.  Allen,  491. 
Adecock  v.  Marsh,  234,  409,  602. 
Aefele  v.  Wright,  227. 
Aier  v.  Frost,  222. 
Alcorn  v.  Hooker,  328. 
Alderman  v.  French,  323,  327,   549,  608, 

617,  624,  626. 
Aldrich  v.  Brown,  171,  616. 
Aldrich  v.  Press  Printing   Co.,  433,*  456, 

460. 
Alexander  v.  Alexander,   190,   207,   222; 

223,  226. 
Alexander  v.  Angle,  258,  271,  512,  537. 
Alexander  v.  Harris,  626. 
Alexander  v.  N.  East  R.  R.  Co.,  340,  460. 
Alexandria,  The,  91. 
Alfred  v.  Farlow,  236,  491. 
Allardice  v.  Robertson,  363. 
Allcott  v.  Barber,  259. 
Allen  v.  Crofoot,  150,  354,  355,  382,  559. 
Allen  v.  London  <fc  S.  W.  R'way,  157. 
Allen  v.  Hillman,  195,  226,  240,  267. 
Allen  v.  Patterson,  180. 
Allen  v.  Perkins,  523,  580,  595. 
Allensworth  v.  Coleman,  166,  178,  601. 
Alleston  v.  Moor,  287. 
Alley  v.  Neely,  197,  224,  584. 
Alsop  v.  Alsop,  179,  233,  298. 
Amann  v.  Damm,  139,  410. 
Ames  v.  Hazard,  548. 
Amick  v.  O'Hara,  128. 
Anderson  v.  Hill,  502,  544. 
Anderson  v.  Stewart,  165,  539. 
Andres  v.  Koppenheafer,  207,  211,  247. 


Andres  v.  Wells,  157. 

Andrew  v.   N.  Y.   Bible   &  Prayer  Book 

Soc,  99. 
Andrews  v.  Bird,  222. 
Andrews  v.  Chapman,  367. 
Andrews  v.  Murray,  502. 
Andrews  v.  Thompson,  496. 
Andrews  v.  Thornton,  331. 
Andrews  v.  Van   Deuser,  327,    334,    335, 

616,  618. 
Andrews  v.  Woodmansee,   168,  170,   190. 

222,  476,  527. 
Angle  v.  Alexander,  271,  490. 
Anibal  v.  Hunter,  551. 
Ankin  v.  Westfall,  550. 
Annison  v.  Blofield,  280. 
Auon  v.  Moore,  218. 
Anthony  v.  Stephens,  617,  624,  629. 
Aon  v.  McNiel,  361. 
Apton  v.  Penfold,  238. 
Archbold  v.  Sweet,  283,  481. 
Armentrout  v.  Moranda,  74. 
Armitage  v.  Dunster,  566. 
Armstrong  v.  Jordan,  281. 
Armstrong  v.  Pierson,  486. 
Arne  v.  Johnson,  175. 
xYrnold  v.  Clifford,  502. 
Arnold  v.  Cost,  222. 
Arrington  v.  Jones,  327,  328,  614. 
Artieta  v.  Artieta.  239,  626. 
Ashley  v.  Bates,  473. 
Ashley  v.  Billington,  169. 
Ashley  v.  Harrison,  59,  116,  301. 
Aspinwall  v.  Whitmore,  586. 
Astley  v.  Younge,  341,  351,  353,  355. 
Aston  v.  Blagrave,  287. 
Atkins  v.  Perrin,  313. 
Atkinson  v.  Congreve,  388,  409. 
Atkinson  v.  Fosbrook,  467. 
Atkinson  v.  Hartley,  172,  241. 
Atkinson  v.  Reding,  222. 
Atkinson  v.  Scammon,  190. 
Attebury  v.  Powell,  516,  549,  551,  585. 
Attorney-General  v.  Daken,  89. 
Attorney-General  v.  Ennis,  494. 
Attorney-General  v.  Pearson,  99. 
Attorney -General  v.  Siddon,  158. 
Atwinger  v.  Fellner,  518. 


12 


TABLE    OF    CASES. 


Ausman  v.  Veal,  173. 

Austen  v.  Wilson,  490. 

Austie  v.  Mason,  222. 

Austin  v.  Culpepper,  59. 

Austin  v.  Hauchett,  325,  326. 

Austin  v.  White,  244. 

Austria,  Emperor  of.  ».  Day,  91. 

Avarillo  v.  Rogers,  566. 

Ayrault  v.  Chamberlain,  472,  475. 

Ayre  v  Craven,  234,  265,  272,  512. 

Ayres'  Case,  224. 

Ayres  v.  Covell,  504,  561. 

Ayrey  v.  Fearnsides,  490. 


B 


Baal  v.  Baggerly,  184. 

Baboneau  v.  Farrell,   250,   259,  276,  533, 

538,  603. 
Backus  v.  Richardson,  179,  266,  267,  470. 
Bacon  v.  Beach,  249. 
Bacon's  Case,  178. 
Badgley  v.  Decker,  106. 
Badgley  v.  Hedges,  232,  355,  357. 
Bagley  v.  Johnson,  523. 
Bagnall  v.  Underwood,  596. 
Bailey  v.  Dean,  02,  162,  309,  351,492. 
Bailey,  ex-parte,  477,  495. 
Bailey  v.  Maynard,  200. 
Bailey  v.  Mogg,  259. 
Baker  v.  Bailey,  1 28. 
Baker  v.  Briggs,  493. 
Baker  v.  Hart,  371. 
Baker  v.  Lane,  468. 
Baker  v.  Morfue,  283. 
Baker  v.   Pierce,  97,  171,  180,  184,  187, 

195,  196,  205. 
Baker  v.  Sanderson,  491. 
Baker  v.  Swackhamer,  465. 
Baker  v.  Wilkinson,  589. 
Baldwin  v.  Elphinstone,  142,  418,  520. 
Baldwin  v.  Flower,  499. 
Baldwin  v.  Hildreth,  517. 
Baldwin  v.  Soule,  567,  605. 
Ball  v.  Bridges,  179. 
Ballard  v  Lockwood,  120. 
Banbury  v.  Duckworth,  355. 
Banfield  v.  Lincoln,  223. 
Bank  of  U.  S.  v.  Owens,  86. 
Barbaud  v.  Hookliam,  386. 
Barber  v.  Bennett,  370. 
Barber  v.  Dixon,  612. 
Barclay  v.  Thompson,  213. 
Barfield  v.  Britt,  613,  625. 
Barger  v.  Barger,  228,  4  7'.>. 
Barham  v.  Nethesall,  187,  21 1,  222,  52Y, 

530. 
Barnabas  v.  Traunter,  238. 
Barnard  v.  Whiting,  491. 


Barnes  v.  Bruddell,  297. 

Barnes  v.  Holloway,  466,  566. 

Barnes  v.  Hard,  491. 

Barnes  v.  McCrate,  353. 

Barnes  v.  Trundy,  291,  518,  541. 

Barnett  v.  Allen.  183,  1S8,  239,  295,  301, 

476,  543,  594. 
Baron  v.  Beach,  246. 
!  Barr  v.  Gaines,  567,  571. 
I  Barren  v.  Mason,  121. 
Barrett  v.  Jarvis,  172,  241. 
Barrett  v.  Long,  273,  532,  535,  538,  540, 

601,  604,  606. 
Barrons  v.  Ball,  180,  223. 
Barrow  v.  Bell,  382,  482. 
Barrow  v.  Gibson,  295. 
Barrow  v.  Lewellin,  154. 
Barrow  v.  Carpenter,  328,  548,  550,  551, 

585,  621. 
Barry  v.  Fisher,  145. 
Barry  v.  McGrath,  440. 
Barthelomy  v.  The  People,  335,  615,  616. 
Bartholomew  v.  Bentley,  180,  188. 
Bartlett  v.  Lewis,  468. 
Bartlett  v.  Robinson,  161. 
Bartley  v.  Richtmeyer,  107. 
Barton  v.  Barton,  519. 
Barton  v.  Brand,  603. 
Barton  v.  Holmes,  592. 
Barton  v.  Port  Jackson  Plank  Road,  259. 
Barwell  v.  Adkins,  001. 
Bash  v.  Sommer,  171,  179,  196,  215,  430. 

499,  500. 
Basket  r.  University  of  Cambridge,  438. 
Bassett  v.  Spofford,  523,  567. 
Bateman  v.  Lyall.  543. 
Baum  v.  Clause,  116,  212,  328. 
Baxter's  Case,  536. 
Bayard  v.  Passmore,  373. 
Baylis  v.  Lawrence,  482,  483,  489. 
Beach  v.  Beach,  500. 
Beach  v.  Ranney,  107,  291,  294,  298,  500, 

563. 
Beamond  v.  Hastings,  297,  511. 
Beardsley  v.   Bridgman,     233,    235,   621, 

024. 
Beardsley  v.  Dibblee,  171,  211. 
Beardsley  v.  Tappan,  171,  202,  275,  415, 

627/528. 
Beasley  v.  Meigs,  608. 
Beatson  v.  Skene,  38.;,  416,  O'.  686. 
Beaumond  >\  Bastings,  297,611. 
Beaumont  v.  Reeves 
Beavor  v.  Hides,  213. 
Bechtell  v.  Shaler,  139. 
Beck  i*.  Stiteel,  207,  212,  288. 
Beckett  v.  Storrott,  194,  226. 
Beckfqrd  v.  D'Arcy,  468. 
Bedford  Charity,  99. 
Bedell  v.  PoweU,  07,  298. 
Beebe  v.  Bank  of  New  York,  68. 
Beechev  v.  Sides,  164 
Beers  v.  Root,  41U. 
Beers  v.  Strong,  179,  185,  ISO,  828. 


TABLE    OF    CASES. 


13 


Behrens  v.  Allen,  374,  551,  552. 
Bell  v.  Bugg,   523. 
Bell  v.  Byrne,  575. 
Bell  v.  Farnsworth,  227,  231. 
Bell  v.  Howard,  493. 
Bell  v.  Parke,  617. 
Bell  v.  Stone,  245,  247. 
Bell  v.  Thatcher,  237,  270,  279,  510. 
Bell  v.  Quinn,  259. 
Bellamy  v   Barker,  239. 
Bellamy  v.  Burch,  258,  267,  268. 
Bellingham  v.  Minors,  236,  336. 
Benaway  v.  Congre,  492,  500,  527,  540. 
Bendish  v.  Lindsey,  237,  508. 
Bennett  v.  Barr,  379. 
Bennett  v.  Bennett,  327,  629. 
Bennett  v.  Deacon,  320. 
Bennett  v.  Hyde,  598,  602. 
Bennett  v.  Wells,  273,  490. 
Bennett  v.  Williamson,  179,  246,  253,477. 
Benson  v.  Flowers,  498. 
Benson  v.  Morley,  226. 
Bentley  v.  Reynolds,  291,  299. 
Benton  v.  Pratt,  307. 
Berry  v.  Adamson,  201. 
Berry  v.  Carter,  233,  235. 
Berry  v.  Drydea,  567,  578. 
Berryman  v.  Wise,  268,  596. 
Best  v.  Bauder,  259. 
Bestwick  v.  Chappel,  228,  527,  529. 
Biddulph  v.  Chamberlayne,  337,  496,  560. 
Biggs   v.   Great    Eastern   Railway    Com- 
pany, 341,  537,  557. 
Bignell  v.  Buzzard,  296. 
Bihint\  Bihin,  58. 
Billing  v.  Knight,  505. 
Billings  v.  Russell,  153,  416. 
Billings  v.  Waller,  551. 
Billings  v.  Wing,  207,  209,  210,  211. 
Binns  v.  McCorcle,  325. 
Binns  v.  Stokes,  323. 
Birch  v.  Benton,  210,  241,  541,  565. 
Birch  v.  Simms,  566. 
Birch  v.  Walsh,  372. 
Bird  v,  Higginson,  473. 
Bisbey  v.  Shaw,  327,  328,  561,  612,  620, 

622. 
Bishop  v.  Latimer,  369. 
Bissell  v.  Cornell,  171,  215,  332,  340,  557, 

560. 
Black  v.  Holmes,  319. 
Blackburn  v.  Blackburn,  485,  495. 
Blackham  v.  Pugh,  320,  394. 
Blackwell  v.  Wiswall,  156. 
Blagg  v.  Sturt,  389,  479,  538,  599. 
Blair  v.  Sharp,  228. 
Blaisdell  v.  Raymond,  477,  506,  547. 
Blake  v.  Pilford,  3S5,  587. 
Blake  v.  Stevens,  336,  368. 
Blanchard  v.  Fisk,  225,  226. 
Blessing  v.  Davis,  523. 
Bleverhassett  v.  Baspoole,  287. 
Blickenstaff  v.  Perrin,  181,  198,  233,  561. 
Blizard  v.  Kelly,  523. 


Bloodworth  v.  Gray,  242. 

Bloome  v.  Bloome,  185,  211,  491. 

Bloss  v.  Tobey,  171,  181,  208,  222. 

Blunden  v.  Eustace,  278. 

Blunt  v.  Zuntz,  563. 

Bodell  v.  Osgood,  249,  272,  385,  485,  493, 

598,  608. 
Bodwell  v.  Swan,  327,  600,  625. 
Boldroe  v.  Porter,  104,  174. 
Bolton  v.  Clapham,  256. 
Bond  v.  Douglass,  142, 150,  592,  601,  625. 
Bond  v.  Kendall,  630. 
Bonner  v.  Boyd,  225. 
Bonner's  case,  244. 
Bonner  v.  McPhail,  472,  515. 
Bonomi  v.  Backhouse,  108,  128. 
Bonyon  v.  Trotter,  167. 
Boosey  v.  Wood,  435. 
Booth  v.  Leach,  220,  221. 
Booth  v.  Milnes,  473. 
Booth  v.  Sweezy,  121. 
Borbidge  v.  Herat,  239. 
Bornman  v.  Boyer,  197,  226. 
Boston  v.  Tatham,  212. 
Bostwick  v.  Hawley,  541. 
Bostwick  v.  Jervis,  354. 
Bostwick  v.  Nicholson,  541. 
Botelar  v.  Bell,  601,  627,  631. 
Boulten  v.  Clapham,  256. 
Boulton  v.  Shields,  314,  317. 
Bourke  v.  Warren,  169,  568. 
Bourland  v.  Eidson,  628. 
Bouyon  v   Trotter,  167. 
Bowden  v.  Allen,  468. 
Bowditchv.  Peckham,  516,  617. 
Bowen  v.  Hall,  617,  624. 
Bowman  v.  Early,  490. 
Box  v.  Barnaby,  233. 
Box's  Case,  244. 
Boyd  v.  Brent,  233,  563. 
Boydell  v.  Jones,  168,  276,  281,  476,  504. 
Boyle  v.  Wiseman,  588. 
Boynton  v.  Kellogg,  81. 
Boynton  v.  Remington,  447. 
Boys  v.  Boys,  233. 
Bracebridge  v.  Watson,  297. 
Bracegirdle  v.  Bailey,  616. 
Bracegirdle  v.  Orford,  58. 
Braden  v.  Wralker,  609. 
Bradford  v.  Edwards,  625,  626. 
Bradlaugh  v.  Brooks,  487. 
Bradley  v.  Gibson,  624. 
Bradley  v.  Heath,  378,  381,  398,  623. 
Bradley  v.  Kennedy,  491,  612,  614. 
Bradley  v.  Methuen,  67. 
Bradshaw  v.  Perdue,  519. 
Brady  v.  Wilson,  207,  221. 
Brandford  v.  Freeman,  473. 
Brandreth  v.  Lance,  91,  92. 
Brandt  v.  Towsley,  298,  489. 
Brashen  v.  Shepherd,  517. 
Bray  v.  Andrews,  216. 
Brayne  v.  Cooper,  208,  272. 
Brecheley  v.  Atkins,  221. 


14 


TABLE    OF   CASES. 


Breckett  v.  Davis,  601. 

Brembridge  v.  Latimer,  506. 

Breeze  v.  Saris,  284. 

Brent  v.  Ingram,  165. 

Bretton  v.  Anthony,  222. 

Brewer  v.  Day,  58. 

Brewer  v.  Temple,  544. 

Brewer  v.  Weakly,  264,  433. 

Bricker  v.  Potts,  231,  505. 

Brickett  v.  Davis,  552,  560,  580,  601. 

Bridges  v.  Horner,  491. 

Bridgman  v.  Hopkins,  617,  623. 

Brigg's  Case,  236. 

Briggs  v.  Byrd,  164,  166,  349,  350. 

Brill  v.  Flagler,  57. 

Brine  v.  Bazalgette,  600. 

Brite  v.  Gill,  174,  197,  214. 

Brittain  v.  Allen,  506,  603. 

•Brittridge's  Case,  170. 

Brodrick  v.  James,  143. 

Bromage  v.  Prosser,    123,  125,  128,  405, 

485,  599. 
Bronson,  Re,  373. 
Brook  v.  Evans,  371. 
Brook  v.  Montague,  129,  358. 
Brook  v.  Pawl,  313,  315. 
Brooke  v.  Wise,  244. 
Brooker  v.  Coffin,  205,  234. 
Brook's  Case,  267. 
Brooks  v.  Bemiss,  192,  247,  337,  553. 
Brooks  v.  Blanchard,  389,  403,  579. 
Brooks  v.  Bryan,  326. 
Brooks  v.  McLellan,  465. 
Broome  v.  Gosden,  495,  538. 
Broomfield  v.  Snoke,  240. 
Brow  v.  Hathaway,  418,  420. 
Brown  v.  Brasher,  143. 
Brown  v.  Brooks,  626. 
Brown  v.  Brown,  192,  528,  529,  626. 
Brown  v.  Charlton,  174,  220. 
Brown  v.  Croome,  416. 
Brown  v.  Dankes,  236. 
Brown  v.  Hall,  618. 
Brown  v.  Hatchaway,  383. 
Brown  v.  Hirley,  153. 
Brown  v.  Hook,  279. 
Brown  v.  Kennedy,  293. 
Brown  v.  Lamberton,  185,  510,  517. 
Brown  v.  Leeson,  472. 
Brown  v.  Lisle,  179. 
Brown  v.  Michel,  349. 
Brown  v.  Minis.  276,  279. 
Brown  v.  .Murray,  471,  475, 
Brown  v.  Nickerson.  212. 
Brown  v.  Orvis,  278. 
Brown  v.  Piner,  227,  530. 
Brown  v.  Remington,  247. 
Brown  v.  Smith,  256,  273,  274,  362,  488. 
Brown  v.  Thurlow,  518. 
Browning  v.  Aylwin,  469. 
Browning  v.  Newman,  542. 


Brownlow's  Case,  514. 
Bruff  v.  Mali,  157. 
Brunson  v.  Lynde,  617. 
Brunswick  v.  Harmer,  150,486. 
Brunswick,  Duke  of,  v.  Pepper,  547,  612. 
Bruton  v.  Downes,  352,  493,  551. 
Bryan  v.  Gurr,  552,  617. 
Bryan  v.  Wikes,  196. 
Bryant  v.  Foot,  105. 
Bryant  v.  Jackson,  434. 
Bryant  v.  Loxton,  259,  275,  276. 
Back  v.  Hersey,  208,  242,  270,  284. 
Buckingham  v.  Murray,  526 
Buckley  v.  Kiernan,  394,  608. 
Buckley  v.  Wood,  349,  350. 
Bucklin,  v.  Ohio,  81. 
Buddington  v.  Davis,  451,  549,  551. 
Buford  v.  McLuniff,  617. 
Buhler  v.  Wentworth,  549. 
Bulli*.  Chapman,  501. 
Bullock  v.  Babcock,  128,  434. 
Bullock  v.  Cloves,  601. 
.Bullock  v.  Koon,  231,  506. 
Bulnois  v.  Mann,  112. 
Bundy  v.  Hart,  213,  222. 
Bunning  v.  Perry,  465. 
Bunton  t'.  Wurley,  350. 
Burbank  v.  Horn,  143,  195,  196,  225,  o\9, 

520. 
Burcher  v.  Orchard,  502. 
Burdett  v.  Abbott,  592. 
Burdett  v.  Cobbett,  142,  150. 
Burford  v.  Wible,  332,334. 
Burgess  v.  Boucher,  184. 
Bunjis's  Case,  611. 
Burke  v  Miller,  617,  61S,  621. 
Burlingame  v.  Burlingame,  350. 
Burnett  v.  Chetwood,  91. 
Burnett  ;\  Wells,  490. 
Burns  v.  Webb,  327. 
Burrell  v.  Nicholson,  473. 
Burson  v.  Edwards,  601,  603. 
Burtch  v.  Nickerson,  207,  26X3,  267. 
Burton  v.  Burton,  143,  207,  236. 
Burton  v.  March,  598,  0'  H  >. 
Burton  v.  Plummer,  584. 
Burton  v.  Tokin,  287. 
Bury  ?'.  Wright,  226. 
Bush  v.   Prosser,   129,  130,  131,  561,  612, 

615,  622. 
Bush  v.  Smith,  218. 
Butler  i'.  Howes,  _78,  541. 
Butler  v.  Maples,  589. 
Butler  v.  Wood,  535. 
Butteuiicld  v.  Buff  urn,  167,  1S5. 
Button  v.   Hey  ward,   104,   167,  178.  119, 

191,  223,  509. 
Butts  v.  Burnett,  464. 
Buys  !•.  Gillespie,  2o4. 
Bvrket  v.  Monohon.  598,  608,  614,  623. 
Byron  v.  Elmes,  233. 


TABLE    OF   CASES. 


15 


C 


Caddy  v.  Barlow,  599. 

Caesar  v.  Curseny,  287. 

Caldwell  v.  Abbey,  199,  239,  527. 

Caldwell  v.  Raymond,  249,  506,  507. 

Calhoun  v.  McMeans,  630. 

Calkins  v.  Sumner,  353. 

Calkins  v.  Wheaton,  476. 

Call  a.  Foresman,  193,  240,  515. 

Gallagher  v.  Cavendish,  466. 

Callan  v.  Gaylord,  583. 

Calloway  v.  Middleton,  323. 

Camfield  v.  Bird,  581. 

Camp  v.  Martin,  281,  282,  283,  284. 

Campagnon  v.  Martin,  566. 

Campbell  v.  Butts,  436,  437,  603. 

Campbell  v.  Lewis,  491. 

Campbell  v.  Spottiswoode,  330,  342,  439, 

441,  449. 
Campbell  v.  White,  239. 
Cane  v.  Goulding,  315. 
Cann  v.  Cann,  371. 
Cannon  v.  Phillips,  604,  515,  516. 
Canterbury  v.  Hill,  229,  515. 
Capel  v.  Jones,  246. 
Carlock  v.  Spencer,  229,  492,  549. 
Carmichael  v.  Schiel,  174. 
Carn  v.  Osgood,  287. 
Carpenter  v.  Dennis,  25S,  273,  275,  512. 
Carpenter  v.  The  People,  81. 
Carpenter  v.  Tarrant,  212. 
Carr  v.  Duckett,  306,  316. 
Carr  v.  Hood,  309,  317,  442,  444. 
Carr  v.  Jones,  369. 
Carrol  v.  Bird,  423. 
Carroll  v.  White,  167,  191,  223,  224,  281, 

506,  540. 
Carslake  v.  Mapeldora,  242,  243. 
Carson  v.  McFadden,  498. 
Carter   v.   Andrews,    174,  175,  194,  240, 

286,  507,  510,  540. 
Carter  v.  Jones,  472. 
Carter  v.  McDowell,  605. 
Carter  v.  Smith,  298. 
Cartwright  v.  Gilbert,  372. 
Cartwright  v.  Wright,  575. 
Case  of  "the  Seven'Bishops,  146,  591,  592. 
Case  v.  Buckley,  221,  226,  491,  505. 
Case  v.  Marks,*495,  602,  623. 
Casneau  v.  Bryant,  470. 
Cass  v.  Anderson,  1(38,  1S5,  231,  507. 
Cassin  v.  Delany,  98,  494. 
Castlebury  v.  Kelly,  215. 
Castleman  v.  Hobbs,  528,  537. 
Gates  v.  Kelto™,  148. 
Catterall  v.  Catterall,  63,  153. 
Catterall  v.  Kenyon,  502. 
Caulfield   v.   Whitworth,   406,   581,   600, 

608. 
Cavanagh  v.  Austin,  603,  608. 
Cave  v.  Shelor,  517. 
Cavel  v.  Birket,  234. 


Caverly  v.  Caverly,  527. 

Cawdrey  v.  Tetley,  282. 

Ceeley  v.  Hoskins,  171,  184. 

Cefret  v.  Burch,  214. 

Center  v.  Finney,  110. 

Center  v.  Spring,  121. 

Chaddock  v.  Briggs,  181,  185,  208,  242, 
246,  284,  287. 

Chadwick  v.  Herepath,  436,  440. 

Chalmers  v.  Payne,  367,  369,  477. 

Chalmers  v.  Shackell,  201,  508,  512. 

Chamberlain  v.  Gaillard,  473. 

Chamberlain  v.  White,  152. 

Chamberlain  ".  Willmore,  152. 

Chambers  v.  Caulfield,  493, 

Chambers  v.  Payne,  367. 

Chambers  v.  White,  510. 

Chandler  v.  Holloway,  165,  191,  223,  510, 
567. 

Chandler  v.  Robison,  558. 

Ch  antler  v.  Lindsey,  500. 

Chapin  v.  White,  569. 

Chaplin  v.  Cruikshauk,  236. 

Chapman  v.  Calder,  328. 

Chapman  v.  Gillett,  227,  230. 

Chapman  v.  Lamphire,  273,  274. 

Chapman  v.  Pickersa-ill,  57. 

Chapman  v.  Smith,  185,  228,  515. 

Chapman  v.  Wright,  406. 

Charlton's  Case,  371. 

Charlton  v.  WaltoD,  370,  375. 

Charlton  v.  Watson,  613. 

Charnell's  Case,  214. 

Chase  v.  Whitlock,  239. 

Chatfield  v.  Comerford,  397. 

Cheadle  v.  Buell,  209,  214,  237,  567. 

Cheatwood  v.  Mays,  236. 

Cheese  v.  Scales,  289. 

Cheatham  v.  Tillotson,  491,  544. 

Cheney  v.  Goodrich,  260. 
J  Chester  v.  Wortley,  468. 

Chetwind  v.  Meeston,  2S6. 

Chevalier  v.  Brush,  327. 

Child  v.  Affleck,  428,  599. 

Child  o.  Homer,  628. 

Childs  v.  State  Bank  of  Mo.,  456. 

Chilvers  v.  Greaves,  486. 

Chipman  v.  Cook,  237,  276,  270,  287. 

Chisholm  v.  State  of  Georgia,  87. 

Christie  v.  Cowell,  171,  197. 

Chubb  v.  Flaunagan,  110,  1.53,  560. 

Chubb  v.  Gsell,  597. 

Chubb  v.  West  ey,  601,  6<">5. 

Church  v.  Bridgman,  178,  240,  324,  517 
528. 

Churchill  v.  Hunt,  200,  250,  337,  552. 

Churchill  v.  Kimball,  523,  544. 

Churchill  v.  Siggers,  348. 

Churlter  v.  Barrett,  568. 

Cilley  v.  Jenness,  549,  617. 

Cincinnati  <fcc.    Co.    v.   Timberlake,    367, 
373. 
I  City  of  London  v.  Vanacker,  434. 

Clapp  v.  Hudson  River  R.  R.  Co.,  493. 


16 


TABLE    OF    CASES. 


Clare  v.  Blakesley,  471. 

Clark  v.  Binney,  245,  246,  247,  250. 

Clark  v.  Creitzburgh,  164. 

Clark  v.  Dibble,  340,  341. 

Clark  v.  Gilbert,  195,  196. 

Clark  v.  Lamb,  491. 

Clarke  v.  Albert,  580. 

Clarke  v.  Creitzburgh,  164. 

Clarke  v.  Fitch,  183. 

Clarke  v.  Freeman,  91. 

Clarke  v.  Mount,  233. 

Clarke  v.  Munsell,  322,  339,  469. 

Clarke  v.  Periam,  543. 

Clarke  v.  Rankin,  114. 

Clarke  v.  Taylor,  338,  341,  548,  560. 

Clarkson  v.   Lawson,  184,  200,  337,   548, 

563. 
Clarkson  v.  McCarty,  327. 
Classon  v.  Bailey,  59. 
Clay  v.  Barkley,  240. 
Clay  v.  Roberts,  252,  548. 
Clay  v.  Yates,  501. 
Cleaver  v.  Senaude,  410. 
Clegg  v.  Loffer,  248,  534. 
Clement  v.  Chivis,  245,  249. 
Clement  v.  Fisher,  491,  518. 
Clement  v.  Lewis,  369,  492. 
Clements  v.  Newcombe,  466. 
Clerk  v.  Dyer,  168. 
Clerk  v.  James,  466. 
Cleveland  v.  Detweiler,  233,  235. 
Clift  v.  White,  120. 
Clifton  v.  Wells,  244. 
Clinton  v.  Mitchell,  475. 
Clissold  v.  Clissold,  466. 
Clutterbuck  v.  Chaffers,  138,  141. 
Coburn  v.  Harwood,  207,  215. 
Cochran  v.  Butterfield,  148,  149,  631. 
Cock  v.  Weatherby,  195,  566. 
Cockaine's  Case,  219. 
Cockaine  v.  Hopkins,  258. 
Cockayne  v.  Hodgkisson,  246,  321,  399. 
Coe  v.  Chambers,  164. 
Coffin  v.  Coffin,  343,  493. 
Coghill  v.  Chandler,  565,  567. 
Cohen  v.  Morgan,  348. 
Colabyn  v.  Viner,  234. 
Colbert  v.  Caldwell,  510. 
Colburn  v.  Patmore,  502. 
Colburn  v.  Whiting,  446. 
Colby  v.  Reynolds,  209,  245,  247. 
Cole  v.  Fisher,  57. 
Cole  v.  Grunt,  232. 
Cole  v.  Perry,  493,  619. 
Cole  v.  Wilson,  400. 
Coleman's  Case,  628. 
Coleman  v.  Harcourt,  499. 
Coleman  v.  Playstead,  195, 197,  225,  599. 
Coleman  v.  Southwick,  493,  509,  630. 
Coleman  v.  West  Hartlepool  Railway  Co. 

371. 
Coles  v.  Haviland,  172. 
Coles  v.  Kettle,  270. 
Collisv.  Malin,  268,  511. 


Collier  v.  Bourn,  221. 
Collins  v.  Carnegie,  282,  568. 
Collins  v.  Cave,  300,  349. 
Collins  v.  Matthews,  295. 
Collins  v.  Middle  Level  Com'mrs,  150. 
Collins  v.  Yates,  466. 
Colman  v.  Goodwin,  168. 
Colonies'  Case,  229. 

Commons  v.  Walters,  227,  572,  613,  624. 
Commonwealth  v.  Abbott,  482. 
Commonwealth  v.  Anthes,  482. 
Commonwealth  v.  Blanding,  146,  343, 588. 
Commonwealth  v.  Buckingham,  166,  625. 
Commonwealth  v.  Child,  168. 
Commonwealth  v.  Clapp,  74,  129,  433. 
Commonwealth  v.  Guild,  592. 
Commonwealth  v.  Holmes,  524. 
Commonwealth  v.  Kneeland,  157, 169,  177. 
Commonwealth  v.  Porter,  482. 
Commonwealth  v.  Runnels,  168,  169. 
Commonwealth  v.  Snelling,  123,  129,  537, 

540. 
Commonwealth  v.  Tarbox,  524. 
Commonwealth  v.  Varney,  569. 
Commonwealth  v.  Wright,  245,  28S,  522, 

523. 
Connors  v.  Justice,  281. 
Conro  v.  Port  Henry  Iron  Co.,  455. 
Conroe  v.  Conroe,  580,  617,  620. 
Cooban  v.  Holt,  340. 
Cook  v.  Barkley,  624,  627. 
Cook  v.  Batchelor,  262,  501. 
Cook  v.  Bostwick,  227,  228. 
Cook  v.  Cook,  543. 
Cook  v.  Cox,  491,  522. 
Cook  v.  Ellis,  490. 
Cook  v.  Field,  32S,  540,  550,  601. 
Cook  v.  Gilbert,  196. 
Cook  v.  Hill,  319,  383,  385,  392,  415,  493. 
Cook  v.  Stoke3,  573. 
Cook  v    Tribune   Association,    164,    175, 

338,  474,  551. 
Cook  v.  Ward,  327,  589. 
Cook  v.  Wingfield,  233,  576. 
Cook  v.  Barkley,  130,  325. 
Cook  v.  Hughes,  175,  474,  526. 
Cook  v.  Smith,  575. 

Cook  v.  Wildes,  410,  484,  608. 

Coombs  v.  Rose,  1 94,  378. 

Coons  v.  Robinson,  229. 

Cooper  v.  Barber,  332,  621. 

Cooper  v.  Bissell,  491. 

Cooper  v.  Greely,  74,  80,  175,  191,  246, 

339,  479,  540,  548,  55S. 
Cooper  v.  Hakewell,  226. 

Cooper  v.  Lawson,  200,  338,  339,  450,  451, 

480,  548. 
Cooper  v.  Marlow,  567. 
Cooper  v.  Perry,  171. 
Cooper  v.  Smith,  191,  223. 
Cooper  v.  Stone,  245,  246,  248,  249,  442, 

443,  445,  446. 
Cooper  v.  The  Butcher  of  Croydon,  472. 
Cooper  v.  Weed,  465,  497. 


TABLE   OF   CASES. 


17 


Coote  v.  Gilbert,  179. 

Cope  v.  Rowland,  259. 

Corbett  v.  Jackson,  384. 

Corcoran  v.  Corcoran,  239,  298. 

Core  v.  Morton,  231. 

Corne  v.  Augell,  229. 

Cornelius  v.  Van  Slyck,169,185, 192, 19G. 

Corner  v.  Shew,  491. 

Corning-  v.  Corning-,  490. 

Cornwall  v.  Gould,  491. 

Cornwall  v.  Richardson,  597. 

Cortland  Co.  v.  Herkimer  Co.,  610. 

Cory  v.  Bond,  559,  560. 

Cotton's  Case,  287. 

Cottrell  v.  Jones,  488. 

Cousins  v.  Merrill,  544. 

Coventry  v.  Barton,  502. 

Cowan  v.  Milbourn,  259. 

Coward  v.  Wellington,  393,  500. 

Cowdry  v.  Coit,  610. 

Cowles  v.  Potts,  431,  434. 

Cox  v.  Bunker,  233. 

Cox  v.  Coleridge,  370. 

Cox  v.  Cooper,  182,  252,  506. 

Cox  v.  Feeney,  375,  450. 

Cox  v.  Humphreys,  236. 

Cox  v.  Lee,  246,  253, 482,  490. 

Cox  v.  Smith,  349. 

Cox  v.  Thomason,  508,  570. 

Coxhead  v.  Richards,  130,  320,  407,  421. 

Cracraft  v.  Cochran,  544. 

Craft  v.  Boite,  466. 

Craig  v.  Brown,  217,  289. 

Craig  v.  Catlet,  630. 

Crain  v.  Petrie,  301. 

Cramer   v.  Noonan,   190,    247,   250,  490, 

527. 
Cramer  v.  Riggs,  269. 
Crane  v.  Douglass,  325. 
Crass  v.  Matthew,  240. 
Cranden  v.  Walden,  284. 
Crawford  v.  Mellton,  229. 
Crawford  v.  Middleton,  324. 
Crawford  v.  Milton,  549. 
Crawford  v.  Wilson,  207,  208,  228. 
Crawford  Re,  372,  373. 
Crawford  v.  Dale,  266,  267. 
Crebnan  v.  Morley,  339. 
Creelman  v.  Marks,  222,  238,  567. 
Creevy  v.  Carr,  342. 
Cregier  v.  Bunton,  477. 
Crisp  v.  Gill,  414. 
Croft  v.  Stevens,  360. 
Croft  v.  Brown,  179,  216. 
Crook  v.  Averin,  179. 
Crookshank  v.  Gray,  229,  232,  507. 
Croskeys  v.  O'Driscoll,  241. 
Crosswell  v.  Weed,  540. 
Crotty  v.  Morrissey,  568. 
Crow,  Ex-parte,  371. 
Crozier  v.  The  People,  81. 
Crump  v.  Adney,  332. 
Cruger  v.  Hudson  River  R.  R.  Co.,  180. 
Cuddington  v.  Williams,  212. 

2 


Cude  v.  Redditt,  323. 

Culberton  v.  Stanley,  566. 

Cuban  v.  Gaylord,  591. 

Culver  v.  Van  Anden,  525. 

Cummerford  v.  Mc Avery,  326. 

Cummin  v.  Smith,  228. 

Cummins  v.  Butler,  521. 

Cundell  v.  Dawson,  259. 

Cunningham  v.  Brown,  353. 

Curry  v.  Walter,  365,  373,  587. 

Curtis  v.  Curtis,  197,  199,  218,  237,  468, 

646. 
Curtis  v.  Lawrence,  490. 
Curtis  v.  Mussey,  157,  323,  433,.  593. 
Custis  v.  Sandford,  613. 
Cutler  v.  Friend,  172. 


D 


Da  Costa  v.  Paz,  99. 

Dailey  v.  Reynolds,  233,  234. 

Dailey  v.  Gaines,  566. 

Dain  v.  Wyckoff,  107. 

Daines  v.  Hartley,  140,  17S,  183, 185,  276, 

593. 
Dale  v.  Lyon,  149. 
Dalrymple  v.  Lofton,  212,  229,  230,  515, 

516. 
Dalton  v.  Higgins,  231,  232. 
Dane  v.  Kenney,  597. 
Damport  v.  Sympson,  353. 
Dancaster  v.  Hewson,  350,  382,  571. 
Dane  v.  Kenney,  323. 
Darby  v.  Ouseley,  218,  342,  473,  475,  482, 

483,  484. 
Darcy  v.  Markham,  136. 
Darling  v.  Banks,  232, 
Darry  v.  The  People,  123,  124 
Davey  v.  Pemberton,  471. 
Davidson  v.  Duncan,  439. 
Davidson  v.  Isham,  57. 
Davies  v.  Taylor,  244. 
Davis'  Case,  228. 
Davis  v.  Cutbush,  486,  622,  629. 
Davis  v.  Davis,  259,  276,  492. 
Davis  v.  Gardiner,  264,  294. 
Davis  v.  Griffith,  629. 
Davis  v.  Johnston,  224,  477. 
Davis  v.  Lewis,  273,  274,  324. 
Davis  v.  Matthews,  549. 
Davis  v.  Miller,  241,  276. 
Davis  v.  Noah,  218. 
Davis  v.  Noaks,  523,  573. 
Davis  v.  Okeham,  224. 
Davis  v.  Reeves,  397,  407. 
Davis  v.  Ruff,  263,  270. 
Davis  v.  Scott,  405. 
Davis  v.  Sheron,  571,  573. 
Davis  v.  Sneed,  383,  394,  420. 


18 


TABLE    OF   CASES. 


Davis  v.  Taylor,  244. 

Davison  v.  Duncan,  345,  378,  381. 

Dawn.  Elv,  371. 

Dawes  v.  Bolton,  236. 

Dawkins  v.  Lord  Paulet.  303. 

Dawling  v.  Venman,  349,  353. 

Dawling  v.  Wenman,  349. 

Day  v.  Bream,  138,  155. 

Day  v.  Buller,  281,  283. 

Day  v.  Robinson,  170,  195,490,  536,  540. 

Day  v.  Tuckett,  469. 

Dayton  v.  Rockwell,  231,  232. 

Dayton  v.  Wilkes,  157. 

Deas  v.  Short,  506. 

DeBode  v.  Regina,  145. 

Deboux  v.  Lehind,  524. 

De  Costa  v.  Jones,  472. 

De  Crespigny  v.  Wellesly,  327. 

Dedway  v.  Powell,  592. 

Deford  v.  Miller,  209. 

Deffries  v.  Davies,  465,  603. 

Defries  v.  Davis,  435. 

Delacroix  ».  Thevenot.  138. 

Delamater  v.  Russell,  88. 

Delaney  v.  Jones,  250,  395. 

Delaware  v.  Pawlet,  287. 

Delegal  v.  Highley,  316,  368,  544. 

Dellevene  v.  Percer,  169. 

Demarest  v.  Raring,  167,  177,   179,  207, 
208,  209,  284. 

De  Medina  v.  Grove,  131. 

Dengate  v.  Gardiner,  299,  499. 

Derry  v.  Handle}',  148,  303. 

Detroit  Daily  Press  Co.  v.  McArthur,  486. 

De  "Witt  o.  Buchanan,  145. 

De  Witt  v.  Greenfield,  617,  618. 

Dexter  v.  Spear,  74,  124,  134,  149,  598. 

Dexter  v.  Taber,  196,  477. 

Deyo  v.  Brundage,  526. 

Dial  v.  Hotter,  208,  377. 

Dias  v.  Short,  167,  236,  506. 

Dibdin  v.  Swan,  296,  445. 

Dickerson  ».  Fletcher,  361. 

Dickey  v.  Andros,  219,  573. 

Dickinson  v.  Barber,  434. 

Dickson  v.  Earl  Wilton,  387,  485. 

Didway  v.  Powell,  357. 

DigbyV  Thompson,  185,  245,  251,  529. 

Dillaye  v.  Hart,  470. 

Dillon  v.  Anderson,  610. 

Dimmock  v.  Fawset,  172. 

Dioyt  v.  Tanner,  544. 

Ditchen  v.  Goldsmith,  472. 

Dixon  v.  Holden,  91,  92,  104. 

Dixon  v.  Parsons,  425. 

Dixon  v.  Smith,  148,  295,  301. 

Dobsou  v.  Thornistone,  259,  273,  274. 

Dod  v.  Robinson,  268,  284,  511. 

Dodd  v-  Crease,  496. 

Dodds  v.  Henry,  238,  288,  380. 

Dodge  v.  Lacey,  188,  190,  527,  536. 

Doe"?;.  Brayne,  473. 

Doe  v.  Earnhart,  112. 

Doherty  v.  Brown,  576. 


Dole  v.  Lyon,  326,  327,  602. 
Dole  v.  Van  Rensselaer,  171,  288. 
Dolevin  v.  Wilder,  561,  562,  612,  623,  626, 

627. 
Dollaway  v.   Turrell,  126,  180,  182,  2S6, 

328,  482. 
Donage  v.  Rankin,  518. 
Dongate  v.  Gardiner,  299,  499. 
Donge  ».  Pearce,  327,  584,  620. 
Donoghue  v.  Hayes,  434,  476. 
Donnelly  v.  Swain,  622. 
Dorian d  v.  Patterson,  167,  170,  177. 
Dorrell  v.  Grove,  221. 
Darrel  v.  Jay,  505. 
Dorsey  v.  Whipps,  214,  236.  504,  505, 527, 

563. 
Doss  v.  Jones,  549,  608. 
Dottarer  v.  Bushey,  163,  197,  208,  224, 
225,  479,  529. 

Doty  v.  Wilson,  502. 

Douge  v.  Pearce,  327,  584,  620. 

Douglass  v.  Tousey,  81,  493,  617. 

Dowd  v.  Winters,  570. 

Dowling  v.  Brown,  498. 

Down's~Case,  218. 

Downing  v.  Marshall,  351. 

Downing  v.  Wilson,  235. 

Doyle  ?'.  O'Doherty,  K52. 

Doyley  v.  Roberts,  246,  270,  271. 

Doyton  v.  Rockwell,  231,  232. 

Drake  v.  Beekman,  498. 

Drake  v.  Drake.  284. 

Drummond  v.  Leslie,  168. 

Drvden  v.  Dryden,  491. 

Du  Bost  v.  Beresford,  91,  166,  168. 

Dudley  v.  Horn,  209,  241. 

Dudley  v.  Robinson,  197,  223,  224. 

Duel  v.  Agan,  519. 

Duffy  v.  The  People,  482. 

Duke  v.  Jostling,  508. 

Dukes  v.  Clarke,  215,  238. 

Dumont  v.  Smith,  121. 

Duncan  v.  Brown,  167,  179,  217,  342,  484, 
486,  626. 

Duncan  v.  Little,  212. 

Duncan  v.  Thwaites,  131,  373. 

Dunckle  v.  Wills,  201. 

Duncombe  v.  Daniell,  432,  473. 

Dunham  v.  Bigg,  402. 

Dunham  v.  Powers,  361. 

Dunlap  v.  Gladding,  353. 

Dunman  v.  Bigg,  402. 

Dunn  v.  Hall,  157. 

Dunn  v.  Winters,  359,  612. 

Dunn  v.  Withers,  245. 
Dunne  v.  Anderson,  447. 

Dnnnell  v.  Fiske,  195,  209,  480. 

Durant  v.  Durant,  57. 
Durham  v.  Musselman,  116. 
Dutton  v.  Eaton.  242,  243. 
Duvall  v.  Griffith,  603. 
Dwinell  v.  Aiken,  613.  614. 
Dyer  v.  Morris,  170,  235. 


TABLE   OF   CASES. 


19 


E 


Eagan  v.  Gantt,  327. 

Eagleton  v.  Duchess  of  Kingston,  350. 

Eakin  v.  Evans,  494. 

Earl  v.  Vass,  586. 

Early  v.  Smith,  469. 

Easley  v.  Moss,  411,  567. 

East  v.  Chapman,  375,  613. 

Eastern  Counties  Railway  v.  Brown,  456. 

Easterwood  v.  Quinn,  326,  629. 

Eastland  v.  Caldwell,  212,  335,  617. 

Eastmead  v.  Witt,  426. 

Eastwood  v.  Holmes,  165,  450,  594,  595. 

Eaton  v.  Allen,  219,  241. 

Eaton  v.  Johns,  201,  536,  563. 

Ebersol  v.  Krug,  499,  500. 

Ecart  v.  Wilson,  174,  191,  510. 

Eccles  v.  Shannon,  227. 

Eckartv.  Wilson,   174,  191,510. 

Edde  v.  Waters,  564. 

Eddowes  v.  Hopkins,  490. 

Ede  v.  Scott,  333,  554. 

Eden  v.  Legare,  172,  241. 

Edgar  v.  McCutchen,  169. 

Edgar  v.  Newell,  493,  617. 

Edgerley  v.   Swain,   181,  209,   214,  504, 

526,  573. 
Edmonds  v.  Walter,  552. 
Edmonson  v.  Stephenson,  424. 
Edmonds  v.  Greenwood,  468. 
Edsall  v.  Brooks,  166,  288,  364,  369,  476, 

607. 
Edsall  v.  Russell,  181,  182,  191,  210,  224, 

272,  282,  341,  549. 
Edwards  v.  Bell,  201,  285,  338,  339,  548. 
Edwards'  Case,  104. 
Edwards  v.  Chandler,  599. 
Edwards  v.  Howell,  268. 
Edwards  v.  Reynolds,  491. 
Edwards  v.  Wooton,  138. 
Egerton  v.  Furzman,  472. 
Effie  v.  Jacob,  435,  436. 
Elam  v.  Badger,  169,  522. 
Eldridge  v.  Bell,  501. 
Elliott  v.  Ailsberry,  208,  233. 
Elliott  v.  Boyles,  603,  622. 
Elliott  v.  Brown,  487. 
Ellis  w.  Kimball,  165,  525. 
Ellis  v.  The  People,  121. 
Else  v.  Evans,  327. 
Else  v.  Ferris,  273,  274,  621,  626. 
Emery  v.  Miller,  171,  576. 
Emery  v.  Prescott,  528,  536. 
Emington  '.'.  Gardiner,  500. 
Emperor  of  Austria  v.  Day,  91. 
Empson  v.  Fairfax,  496. 
Empson  v.  Fairford,  479,  483. 
Empson  v.  Griffin,  490. 
England  v.  Burke,  550. 
Engurst  v.  Brown,  278. 
Entick  v.  Carrington,  360. 
Erwin  v.  Sumrow,  598,  599. 


Estes  v.  Antrobus,  598. 
Estes  v.  Carter,  215. 
Evans  v.  Franklin,  552. 
Evans  v.  Gwyn,  234. 
Evans  v.  Harlow,  162,  308. 
Evans  v.  Harries,  295,  488,  542. 
Evans  v.  Smith,  322,  630. 
Evans  v.  Tibbins,  191. 
Evarts  v.  Smith,  232,  566. 
Ewing  v.  Cullen,  499. 


F 


Fairchild  v.  Adams,  376. 

Fairman  v.  Ives,  330,  385,  388,391,  599. 

Faith  v.  Carpenter,  498. 

Falkuer  v.  Cooper,  165,  234. 

Fallen  stein  v.  Boothe,  167,  179. 

Faris  v.  Starke,  409. 

Farley  v.  Ranck,  598,  600. 

Farmers'  Bank  v.  Butchers'  Bank,  157. 

Farnsworth  v.  Storrs,  186,  238,  376,  378. 

Farr  v.  Roscoe,  326,  342. 

Faulkner  v.  Wilcox,  493. 

Fawcett  v.  Charles,  364,  380,  390. 

Feise  v.  Linder,  542. 

Fellows  v.  Hunter,  551. 

Fenn  v.  Dixe,  173. 

Feray  v.  Foote,  202. 

Ferdon  v.  Cunningham,  259. 

Fero  v.  Ruscoe,  331,  332,  341,  608,  621. 

Fidler  v.  Delavan,  176,  263,  332,  333,  340, 

341,  501,  549,  551. 
Fidman  v.  Ainslie,  327. 
Figgins  v.  Cogswell,  512. 
Filkin  v.  Herbert,  371. 
Finch  v.  Gridley,  259. 
Finden  v.  Westlake,  395,  411. 
Findley  v.  Bear,  196. 
Findlay  v.  Lindsay,  468. 
Finnerty  v.  Barker,  522. 
Finnerty  v.  Tipper,  591. 
First   Baptist   Church   v.   Brooklyn  Fire 

Ins.  Co.,  455. 
First  Baptist  Church  in  Schen.  v.  Schen. 

<fe'Troy  R.  R.  Co.,  57,  456. 
Fish  v.  Dodge,  57. 
Fish  v.  Thorowgood,  335. 
Fisher  v.  Atkinson,  218. 
Fisher  v.  Clement,  495. 
Fisher  v.  Pattison,  624. 
Fisher  v.  Rotereau,  197,  224. 
Fisk  v.  Chester,  121. 
Fittler  v.  Veal,  299. 
Fitzgerald  v.  Ferguson,  476. 
Fitzgerald  v.  Redtield,  283. 
Fitzgerald  v.  Seward,  6]  ■>,  618. 
Fitzsimmons  v.  Cutter,  528. 
Flamingham  v.  Boucher,  604. 
Fleetcraft  v.  Jenks,  598. 
Fleetwood  v.  Curley,  139,  140,  538,  593. 


20 


TABLE    OF   CASES. 


Fleming  v.  Jales,  225. 

Fleming  v.  Newton,  91,  375. 

Flemington  v:  Smithers,  97. 

Fletcher  v.  Braddyll,  583. 

Fletcher  v.  Burroughs,  624. 

Flint  v.  Clarke,  488,  617. 

Flint  v.  Pike,  359,  365,  366,  367,  368,  369, 

370,  553. 
Flower's  Case,  282. 
Flower  v.  Pedley,  567. 
Floyd  v.  Jones,  218. 
Folger  v.  Hoogland,  373. 
Folsom  v.  Brown,  549,  613. 
Fonville  v.  Nease,  68,  138,  141. 
Foote  v.  Rowley,  574,  642. 
Foot  v.  Brown,  276,  283. 
Foot  v.  Tracy,  617,624. 
Forbes  v.  Gregory,  496. 
Forbes  v.  Johnson,  165,  349. 
Forbes  v.  King,   169,  172,   182,  184,  245, 

253. 
Forbes  v.  Myers,  601. 
Forbes  v.  Waller,  120. 
Force  v.  Warren,  138,  418. 
Ford  v.  Bennett,  523. 
Ford  v.  Johnson,  239. 
Ford  v.  Primrose,  185,  191. 
Fores  v.  Johns,  501. 
Forescoe  v.  May,  149,  437,  631. 
Forrest  v.  Hanson,  170,  239,  614. 
Forsdike  v.  Stone,  494,  496. 
Forsher  v.  Abrams,  613,  630,  631. 
Forster  v.  Browning,  180,  197. 
Forsyth  v.  Edmiston,  152,  523. 
Forward  v.  Adams,  267,  268. 
Fossv.  Hildreth,  116. 

Foster  v.  Cronkhite,  120. 

Foster  v.  Lawson,  262,  263,  275,  501. 

Foster  v.  Pointer,  496,  580,  581. 

Foster  v.  Small,  171,  272,  577. 

Foulger  v.  tfewcomb,  104,  257,  293,  505, 
541. 

Fountain  v.  Boodle,  429,  600. 

Fountain  v.  West,  472,  618. 

Fowell  v.  Plunkett,  214. 

Fowel  v.  Robbins,  230. 

Fowler  v.  Dowdney,  212. 

Fowler  v.  Homer,  418. 

Fowler  v.  Lindsay,  86. 

Fowles  v.  Bowen,  148,  248,  265,  270,  276, 
278,  303,  423,  429,  599. 

Fox  v.  Broderick,  141,  546. 

Fox  v.  Vanderbeck,  566,  567. 

Fox  v.  Wilson,  566. 

Fradley  v.  Fradley,  547,  595,  613. 

Francis  v.  Roose,  185,  218,  531. 

Fraser  v.  Berkeley,  4  45. 

Fray  v.  Blackburn,  361. 
Fray  v.  Fray,  251,  481. 
Fream  v.  Sergeant,  472. 
Fmleritze  v.  Odeawalder,  550. 
Freeman  v.  Price,  233.  618. 
Freeman  v.  Taylor,  233. 
Freeman  v.  Tinsley,  493. 


Freethy  v.  Freethy,  499. 

French  v.  Creash,  213. 

French  v.  Millard,  81. 

Frescoe  v.  May,  149,  437,  631. 

Frisbie  v.  Fowler,  233. 

Frost  v.  Ayer,  222. 

Fry  v.  Bennett,  125,  129,  131,  260,  268, 
269,  342,  451,  472,  473,  475,  481, 
484,  489,  490,  493,  504,  506,  537, 
549,  555,  551,  561,  562,  584,  588, 
598,  602,  604,  630. 

Frver  v.  Gathercole,  591. 

Fryer  v.  Kinnersley,  431. 

Fuller  v.  Dean,  323,  617,  624. 

Fuller  v.  Fenner,  298,  489. 

Fysh  v.  Thorowgood,  335. 


G 


Gage  v.  Robinson.  340,  341,  512. 

Gage  v.  Shelton,  187,  198,  207,  236,  241, 

535,  540. 
Gainford  v.  Tuke,  212. 
Gainsford  v.  Blatchford,  530. 
Gale  v.  Hays,  514. 
Gale  v.  Leckie,  501. 
Gallager  v.  Brundel,  307. 
Galloway  v.  Courtney,  177,  225,  504.  629. 
Gall  we  v  >:  Marshall",  215,  261,  266.   -T-. 

284,  511. 
Gandy  v.  Humphries,  600. 
Gantz  v.  Vinard,  613. 
Gardiner  v.  Helvis,  247. 
Gardiner  v.  Hopwood,  268. 
Gardiner  v.  Spurdance,  223. 
Gardiner  v.  Williams,  530,  540. 
Gardiner  v.  Dyer,  523. 
Gardiner  v.  Slade,  424,  428,  485. 
Gardiner  v.  Thomas,  146. 

Garford  ».  Clark,  244. 

C-rland  M&parte,  212. 

Garnett  v.  Derrv,  193. 

Garr  v.  Selden,  281,  283,  352,  522. 

Garret  v.  Taylor,  59. 

Garrett  v.  Dickerson,  603,  608. 

Garrett  r.  Ferrand,  370. 

Gascoigne  v.  Ambler,  233. 

Gassett  v.  Gilbert,  417. 

Gates  o.  Bowker,  185,  258,  569,  587. 

Gates  v.  Meredith.  435.  629. 

Gathercole  v.  Miall.  246,  441,  454,  590. 


Gaul  v.  Fleming,  225. 
Gawdy  v.  Smith,  239. 
Cay  v.  Horner,  190.  276,  278,  523. 
GaV.ynski  v.  Colburn,  499,  500. 
I  Mare  v.  Britton.  541. 
Geary  v,  Connoss,  567. 
Geary  v.  Physic,  59. 
Gelen  v.  Hall,  361. 

Genet  v.  Mitchell,  127,  336,  472,  47:-,   17 5, 
481. 


TABLE    OF   CASES. 


21 


George  v.  Goddard,  379,  434,  485. 

George  v.  Lemon,  556. 

Gerard  v.  Dickinson,  314. 

Gerard  Will  Case,  99. 

Getting  v.  Foss,  415. 

Gfroever  v.  Hoffman,  473,  493. 

Gibbs  v.  Arthur  &  Burdell,  373. 

Gibbs  v.  Dewey,  189,  207,  209. 

Gibbs  v.  Pike,  314. 

Gibbs  v.  Tucker,  230. 

Gibson  v.  Niven,  498. 

Gibson   v.  Williams,  140,  16G,   178,   180, 

477. 
Giddins  v.  Mirk,  185,  187,  207. 
Gidney  v.  Blake,  165,  177,  517,  537. 
Gilbert  v.  Rodd,  193. 
Gilbert  v.  Sheldon,  81. 
Gilbert  v.  The  People,  350. 
Gilbreath  v.  Allen,  490. 
Giles  v.  The  State,  150,  247,  520,  540. 
Gill  v.  Bright,  225. 
Gillet  v.  Mason,  195. 
Gillett  v.  Bullivant,  297,  303. 
Gilman  v.  Lowell,  229,  326,  612,  617,  621, 

623. 
Gilmer  v.  Ewbank,  342,  598. 
Gilmore  v.  Borders,  609. 
Gilpin  v.  Fowler,  320,  413,  485,  607. 
Girard  v.  Risk,  518. 
Giraud  v.  Beach,  165,  457,  468. 
Glass  v.  Stewart,  501. 
Glen  v.  Hodges,  146. 
Godfrey  v.  More,  223. 
Godfrey  v.  Owen,  280. 
Godson  v.  Home,  481. 
Goldman  v.  Stearns,  242,  328. 
Goldstein  v.  Foss,  184,  262. 
Gompertz  v.  Levy,  527,  532,  535. 
Goodale  v.  Castle,  222. 
Goodall  v.  Ensall,  496. 
Goodbread  v.  Leadbitter,  631. 
Goodburne  v.  Bowman,  337. 
Goodenow  v.  Tappan,  361. 
Goodrich  v.  Davis,  166,  185,  482,  483,  505. 
Goodrich  v.  Hooper,  290. 
Goodrich  v.  Stone,  166,  607. 
Goodrich  v.  Warner,  143,  569. 
Goodrich  v.  Woolcot,  185,  215,  476,  529. 
Goodspeed  v.  East  Haddani  Bank,  456. 
Goodwin  v.  Daniels,  612. 
Gordon's  Case,  268. 
Gordon  v.  Spencer,  150. 
Gore  v.  Gibson,  435. 
GorLara  v.  Ives,  190,  219,  220,  477. 
Gorman  v.  Sutton,  608,  613. 
Gorton  v.  Keeler,  227,  340,  562,  614,  623. 
Goslin  v.  Carry,  489,  606. 
Gosling  v.  Morgan,  181,  208,  491,  504,  527. 
Go?slin  v.  Cannon,  349,  855. 
Gostling  v.  Brooks,  98,  275, 477, 479,  491. 
Gould  v.  Glass,  180. 
Gould  v.  Hulme,  350. 
Gould  v.  Oliver,  490. 


Gould  v.  Weed,  475,  628,  631. 

Goulding  v.  Herring,  313. 

Gower  v.  Heath,  494. 

Graham  v.  Jones,  561. 

Graham  v.  Woodhull,  580. 

Grant  v.  Astle,  490. 

Grant  v.  Hover,  615,  621. 

Grant  v.  Mosely,  156. 

Grater  v.  Collard,  487. 

Graves  v.  Blanchard,  233,  234. 

Grave's  Case,  226. 

Graves  v.  Waller,  478.  491. 

Gray  v.  Metcalfe,  268. 

Gray  v.  Neilis,  521. 

Gray  v.  Pentland,  363,  384,  586. 

Gray  v.  Wayle,  226. 

Gray  v.  West,  496. 

Grayson  v.  Meredith,  472. 

Greely's  Case,  392. 

Green  v.  Button,  300,  310,  315,  316. 

Green  v.  Chapman,  446. 

Green  v.  How,  233. 

Green  v.  Hudson  River  R.  R.  Co.,  97. 

Green  v.  Lincoln,  221. 

Green  v.  London  Omnibus  Co.,  456. 

Green  v.  Long,  515. 

Green  v.  Telfair,  431. 

Green  v.  Warner,  223. 

Greenfield's  Case,  276. 

Greenshields  v.  Crawford,  163. 

Greenshade  v.  Ross,  466. 

Greeve  v.  Copshill,  288. 

Gregory  Re,  440. 

Gregory  v.  Atkins,  332. 

Gregory  v.  Duke  of  Brunswick,  57,  296, 

331,  491. 
Gregory  v.  Regina,  246. 
Gregory  v.  Williams,  489. 
Grenfel  v.  Pierson,  496. 
Greville  v.  Chapman,  260. 
Griffin  v.  Marquardt,  120. 
Griffin  v.  Walker,  466. 
Griffith  v.  Wells,  259. 
Griffiths  v.  Hardenburgh,  502. 
Griffiths  v.  Lewis,  150,  273,  277,  536,  545, 

181,418,  491,  534,  544. 
Grills  v.  Marwells,  549. 
Grimes  v.  Coyle,  342,  383. 
Grosvenor  v.  Hunt,  472. 
Grove  v.  Brandenburg,  353. 
Grove  v.  Hart,  499. 
Grubs  v.  Keyser,  523. 
Guard  v.  Risk,  234. 
Gugy  v.  Kerr,  361. 
Guildersleeve  v.  Ward,  196. 
Guille  v.  Swan,  128. 
Gulford's  Case,  220. 
Gurneth  v.  Derry,  230. 
Gutsole  v.  Mathers,  316,  517,  522,  525. 
Guy  v.  Gregory,  298. 

Gwynn  v.  South-Eastern  Railway  Co.,  340. 
Gwynne  v.  Sharpe,  547,  595,  613. 
Gyles  v.  Bishop,  282. 


22 


TABLE    OF   CASES. 


H 


Hackett  v.  Brown,  615,  627. 

Haddon  v.  Lott,  291. 

Hagan  v.  Hendry,  123,  546,  550,  625. 

Haggart's  Trustee  v.  Hope,  361. 

Haight  v.  Cornell,  382,  386,  481,  485. 

Haight  v.  Hoyt,  219. 

Haine  v.  Welling,  326. 

Haire  v.  Wilson,  112,  486. 

Hackwell  v.  Ingram,  482,  483. 

Hale  v.  Blandv,  510,  529. 

Halford  v.  Smith,  496. 

Hall  v.  Montgomery,  227,  229,  231. 

Hall  v.  Nees,  544. 

Hall  v.  Warner,  203. 

Hall  v.  Weedon,  229. 

Hall  v.  Vreeland,  146. 

Halley  v.  Stanton,  222. 

Halliwood's  Case,  137. 

Hallock  v.  Miller,  107,  249,  292,  506,  542. 

Halloran  v.  Thompson,  400. 

Hamber  v.  Roberts,  163. 

Hamer  v.  McFarlin,  617. 

Hamilton  v.  Dent,  231. 

Hamilton  v.  Glenn,  476. 

Hamilton  v.  Langley,  570,  572. 

Hamilton  v.  Smith,  185. 

Hamilton  v.  Walters,  162,  307,  542. 

Hampton  v.  Wilson,  322,  323. 

Hancock  v.  Case,  395. 

Hancock  v.  Stephens,  167,  185,  567,  624. 

Hancock  v.  Winter,  218,  578. 

Hankinson  v.  Bilby,  128,  171,  173,  174, 

177,  178. 
Hanks  v.  Palton,  522. 
Hanna  v.  De  Blaguere,  399. 
Harbison  v.  Shook,  597,  602,  608. 
Harcourt  v.  Harrison,  541,  597. 
Hardin  v.  Cumstock,  157,  349. 
Harding  v.  Brooks,  191,  236,  492. 
Harding  v.  Bullman,  353,  354. 
Harding  v.  Greening,  157. 
Hardwick  v.  Chandler,  279. 
Hare  v.  Mellor,  384. 
Hargrave  v.  Le  Breton,  125, 128, 162,  309, 

312. 
Harker  v.  Orr,  491. 
Harle  v.  Catherall,  289,  441. 
Harman  v.  Brotherson,  362. 
Harman  v.  Delany,  169,  247,  2r>7. 
Harman  v.  Carrin^ton,  190,  509. 
Harper  v.  Delph,  164,  198,  510,  517. 
Harper  v.  Luffkin,  107. 
Harris  v.  Amery,  257. 
Harris  v.  Bailey,  267. 
Harris  v.  Burley,  529. 
Harris  v.  Dixon,  216. 
Harris  v.  Harrington,  385. 
Harris  v.  Huntington,  501. 
Harris  v.  Lawrence,  565. 
Harris  v.  Porter,  297. 
Harris  v.  Pnrdy,  230,  514,  516. 


Harris  v.  Smith,  238. 

Harris  v.  Thompson,  401,  484,  485,  600. 

Harris  v.  Wilson,  597. 

Harris  v.  Woody,  228,  558. 

Harrison  v.  Bevington,  165,  263,  50],  593. 

Harrison  v.  Bush,  84,  322,  364,  385,  388, 

398,  496. 
Harrison  v.  Findlav,  171. 
Harrison  v.  King, *1 83,  217,  219,  271. 
Harrison  v.  Pearce,  149,  437,  489.  631. 
Harrison  v.  Stratton,  181,  215. 
Harrison  v.  Thornborough,  171,  177,  17\ 

219,  273,  275. 
Hart  v.  Crow,  500. 
Hart  v.  Reed,  248,  328. 
Hartin  v.  Hopkins,  492,  495. 
Hartley  v.  Herring,  293,  295,  542. 
Hartrauft  v.  Hesser,  600. 
H.irtsock  v.  Reddick,  350. 
Hartwell  v.  Vesey,  409,  599,  600. 
Harvey  v.  Boies,"212,  229,  230. 
Harvey  v.  Brand,  169. 
Harvey  v.  Coffin,  163. 
Harvey  v.  Dunlap,  110. 
Harvey  v.  French,  167,  197,  537,  540. 
Harwood   v.  Astley,  130,  255,  260,  433, 

512. 
Harwood  v.  Green,  392. 
Ilaskins  v.  Lumsden,  323,  624. 
Hastings  v.  Lusk,  130,  356.  357,  364. 
Hatch  v.  Potter,  434. 
Hatcher  v.  Rocheleau,  163. 
Hawk  v.  Harman,  502. 
Hawkes  v.  Coster,  :;^"i. 
Hawkes  v.  Hawkev,  528,  531,  540. 
Hawks  v.  Patton,  177,  584. 
Hawley  v.  Sidenham,  227. 
Hawn  v.  Smith,  225. 
Haws  v.  Stanford,  227,  327,  474. 
Haynes  v.  Leland,  150,  325. 
Hays  v.  Allen,  289. 
I  lavs  ?•.  Berrymao,  470. 
Haya  v.  Brieriv,  476,  538. 
Hays  v.  IIavs,"l91.  223,477. 
Hays  v.  .Mitchell,  170,  171,  529. 
Havter  v.  Moat,  491. 
Haythorne  v.  Lawson,  262,  489,  501. 
Haywood  v.  Foster,  623. 
Haywood  v.  Naylor,  2.M. 
Haywood  v.  Newton,  494. 
Head  v.  Briscoe,  501. 
Heake  v.  Monlton,  211,  218,  286. 
Hearne  v.  Stowell,  286,364,  365,  36 
Heaton  ;■.  Wright,  561. 
Hecker  v.  DeGroot,  111,  459. 
Heilley  r.  Barlow,  450,  474. 
Helly  v.  Hender,  227. 
Helsham  v.  Blackwood.  200,  307. 
Heming  ;•.  Power,  170,  174,  21c,  212,  477, 

509,  532,  547,  595. 
Hemmenwav  v.  Woods,  179. 
Hemmings  "v.  Gasson,  479,  505,  538,  604. 

Henacre  ». ,  165. 

Henderson  v.  Broomhead,  351,   353,  360 


TABLE   OF   CASES. 


23 


Henderson  v.  Hale,  248. 

Henken  v.  Guers,  472. 

Hennessey  ».  Morgan,  552. 

Henning  v.  Power,  170. 

Henry  v.  Hamilton,  231. 

Henry  v.  Norwood,  617,  621. 

Henshaw  v.  Foster,  59. 

Henson  v.  Veatch,  436,  621,  623,  624. 

Her  v.  Cromer,  598. 

Heriot  v.  Stuart,  308,  444,  445,  513. 

Herle  v.  Osgood,  269. 

Herr  v.  Bamburg,  276,  551. 

Herrick  v.  Lapham,  107,  541. 

Hersh  v.  Ringwalt,  107,  325,  567. 

Herst  v.  Borbridge,  236,  239. 

Herver  v.  Dawson,  4n2. 

Hesler  v.  Degant,  475,  596,  601. 

Hess  v.  Jockley,  192,  583. 

Hewitt  v.  Mason,  242,  543. 

Hewlett  v.  Crunch,  450. 

Hewlett  v .  Crutcliley,  493. 

Hibbins  v.  Lee,  450. 

Hibbs  v.  Wilkinson,  442,  445,  627. 

Hibler  v.  Servoss,  569. 

Hickinbotham  v.  Leach,  556. 

Hickley  v.  Grosjean,  524. 

Hicks'  Case,  138. 

Hicks  v.  Foster,  487. 

Hicks  v .  Hollingshead,  234. 

Hicks  v.  Joyce,  233. 

Hieks  v.  Rising,  614. 

Hicks  v.  Walker,  541. 

Higginson  v.  Flaherty,  358. 

Hiajhniore  v.  Harrington,  493. 

Hills'  Case,  273. 

Hill  v  Miles,  349,  350,  523,  573. 

Hill  v.  Patterson,  496. 

Hill  v.  Sellick,  362. 

Hill  v.  Ward,  309,  316. 

Hillhousew.  Dunning,  229,  245,  246. 

Hillhouse  v.  Peck,  207,  2<>9,  214,  237. 

Hilliard  v.  Constable,  287. 

Hills  v.  University  of  Oxford,  438. 

Hilsden  v.  Mercer,  335. 

Hilton  v.  Playters,  280. 

Hinkman  v.  Firnie,  473. 

Hirst  v.  Goodwin,  295. 

Hitchin  v.  Campbell,  436. 

Hitchon  v.  Best,  466,  583. 

Hix  v.  Drury,  549,  553. 

Hoag  v.  Hatch,  207,  209,  237,  491. 

Hoar  v.  Wood,  349,  356,  358. 

Hoare  v.  Dickson,  472,  496. 

Hoare  v.  Silverlock,   169,  172,  185,  250, 

366,  367,  373. 
Hobart  v.  Wilkins,  466, 
Hobkins  v.  Beadle,  214. 
Hobson  v.  Hudson,  242. 
Hodge  v.  Churchyard,  466. 
Hodgson  v.  Scarlett,  217,  256,  358,  873. 
Hogan'i1.  Sutton,  454. 
Hogan  v.  Wilmarth,  515. 
Hogg  v.  Dorrah,  167,  290. 
Hogg  v.  Vaughan,  281. 


Hogg  v.  Wilson,  167,  224,  491 

Hogle  v.  Hogle,  231. 

Holcombe  v.  Roberts,  522. 

Holland  v.  Stoner,  180. 

Hollenbeck  v.  Clow,  549. 

Holly  v.  Burges,  213. 

Hollingsworth  v.  Duane,  373. 

Hollingsworth  v.  Shaw,  239. 

Hollis  v.  Briscow,  287. 

Holly  v.  Burgess,  192,  597. 

Holmes  v.  Catesby,  551,  556. 

Holmes  v.  Johnson,  385. 

Holt  v.  Muzzy,  f29,  545. 

Holt  v.  Parsons,  342,  377,  603. 

Holt  v.  Scholefield,    104,    181,    210,  211, 

214,  246,  490,  531. 
Holt  v.  Taylor,  505. 
Holton  v.  Muzzy,  334. 
Holwood  v.  Hopkins,  302. 
Home  v.  Bentinck,  363,  586. 
Homer  v.  Battyn,  57. 
Homer  v.  Taunton,  169,  170,  592. 
Honess  v.  Stubbs,  550. 
Honywood,  Re,  646. 
Hooker  v.  Tucker,  508. 
Hooper  v.  Truscott,  383. 
Hopkins  v.  Beadle,  214,  227,  228,  490. 
Hopkins  v.  Smith,  614. 
Hopton  v.  Baker,  289. 
Hopwood  v.  Thorn,  214,  285,  399. 
Horn  v.  Foster,  228,  232. 
Home's  Case,  91. 
Home  v.  Powell,  216. 
Horner  v.  Marshall,  434. 
Horton  v.  Banner,  550,  580. 
Horton  v.  Byles,  499. 
Horton  v.  Payne,  502. 
Horton  v.  Reavis,  565. 
Hoskins  v.  Tarrence,  226. 
Hosley  v.  Brooks,  490,  520,  600,  602,  630. 
Hosmer  v.  Loveland,  90,  351,  363,  390. 
Hotchkiss  v.  Lothrop,  602,  627. 
HotchMss  v.  Oliphant,  219,  327,  625. 
Hotchkiss  v.  Porter,  342,  608. 
Honghtaling  v.  Kiklerhouse,  598. 
Houghton  v.  Davenport,  518. 
House  v.  House,  221. 
Hovey  v.  Rubber  Tip  Pencil  Co.,  92. 
How  v.  Prinn,  266. 
Howard  v.  Crowther,  498. 
Howard  v.  Sexton,  125,  129, 232,  603,  605, 

608. 
Howard  v.  Stephenson,  209,  236. 
Howard  v.  Thompson,  364,  383,  385,  391, 

586. 
Howe  v.  Buffalo  <fe  Erie  R.  R.,  502. 
Howe  v.  Perry,  600,  625,  629. 
Howell  v.  Cheatem,  605. 
Howell  v.  Howell,  435,  598,  629. 
Hoyle  v.  Oornwallis,  169. 
Hoylo  v.  Young,  186. 
Hoyt  v.  McKenzie,  91. 
Hoyt  v.  Smith,  534,  544. 
Hoyt  v.  Thompson,  145. 


24 


TABLE    OF   CASES. 


Huckle  v.  Reynolds,  188,  572,  581. 

Hudson  v.  Garner,  540,  598. 

Hudson  v.  Plets,  498. 

Huff?;.  Bennett,  157,  373,  481,  588. 

Huffman  v.  Shumate,  566. 

Hughes  i'.  Rees,  185,  199,  491,  544. 

Hughley  v.  Hughley,  167. 

Hull  v.  Blandv,  504. 

Hull  v.  Smith,"  273,  274. 

Hull  v.  Vreeland,  465,  544. 

Humber  v.  Ainge,  403. 

Hume  v.  Arrasmith,  173. 

Humfries'  Case,  197. 

Humphrey  v.  Douglass,  128. 

Humphreys  v.  Miller,  594. 

Humphreys  if.  Stanfield,  240. 

Humphreys  if.  Stillwell,  3S7,  398. 

Humphries  v.  Parker,  602. 

Hungerford  v.  Watts,  222. 

Hunt  v.  Algar,  369,  478. 

Hunt  v.  Bell,  250. 

Hunt  v.  Bennett,  264,  432,  482,  490,  495, 

418,  520,  521. 
Hunt  v.  Jones,  244. 
Hunt  v.  Lane,  502. 
Hunt  v.  Merrychurch,  221. 
Hunt  v.  Thimblethorp,  219. 
Hunter  v.  Hudson  River  R.  R.  Co.,  456. 
Hunter  v.  Hunter,  192. 
Hunter  v.  Sharp,  347,  535. 
Hunter  v.  The  Publishers  of  the  Tall  Mall 

Gazette,  347. 
Huntington  v.  Conkey,  472. 
Huntley  v.  Ward,  400. 
Hurd  v.  Moore,  519. 
Huron  if.  Smith,  1 99. 
Hurrell  v.  Ellis,  329. 
Hurtert  v.  Weines,  495,  583. 
Huson  if.  Dale,  342,  622,  623. 
Hutch  v.  Potter,  601. 
Hutchins  v.  Blood,  515. 
Hutchinson  if.  Wheeler,  623. 
Hutton  v.  Beck,  289. 


FAnson  if.  Stewart,   170,  239,   247,   S27, 

329,538,551. 
Idol  v.  Jones,  175,  239. 
Ilderton  v.  Ilderton,  146. 
Ingalls  v.  Allen,  164. 
Ingebath  v.  Jones,  221. 
Ingram  v.  FergusoD,  436. 
Ingram  if.  Lawson,  162, 163,  273,  S07,  333, 

489,  541. 
Ings  v.  London  and   South   West   R.  R., 

496. 
Inman  v.  Foster,  323,  327,  597,  604,  625. 
Inman  if.  Jenkins,  4GS,  588. 
Ireland  v.  Champneys,  49S. 
Ireland  v.  McGarrish,  271. 


Ireland  v.  Smith,  172. 
Irwin  v.  Brandwood,  242. 
Irwin  v.  Cook,  494. 
Isley  v.  Lovejoy,  435,  567. 
Isham  v.  York,"2S7. 


Jackson  v.  Adams,  173.  220. 

Jackson  v.  Christman,  163. 

Jackson  v.  Cody,  163. 

Jackson  v.  Goes,  163. 

Jackson  v.  Greer,  188. 

Jackson  v.  Hopperton,  430,  489,  608. 

Jackson  v.  King,  163. 

Jackson  v.  Mayne,  375. 

Jackson  v.  Stetson,  549,  608,  617. 

Jackson  v.  Weisinger,  22^. 

Jacob  if.  Miles,  179. 

Jacobs  v.  Fyler,  214,  229. 

James  v.  Boston,  385. 

James  v.  Brook,  218,  265,  288. 

James  v.  Clarke,  631. 

James  v.  Rutledge,  163. 

J' Anson  v.  Stuart,  170,  239,  247,  327,  329, 

538,  551. 
Jarnigan  v.  Fleming,  177,  325,  437. 
Jarvis  v.  Hathaway,  130,  376,  484,  492. 
Jaycocks  v.  Ayres,  551. 
Jefferson  R.  R.  v.  Rogers,  460. 
Jeffries  if.  Duncombe,  58,  146,  520. 
Jeffryes  if.  Payhem,  280. 
Jekylle  v.  Moore,  362. 
Jellerman  v.  Dolna,  564. 
Jellison  v.  Goodwin,  602. 
Jenkins  if.  Cockerharn,  341,  625. 
Jenkins  if.  Phillips.  524. 
Jenkins  if.  Smith,  279. 
Jenkins  r.  Wheeler,  12S. 
Jenkinson  if.  Mayne,  218. 
Jenkinson  ?'.  Wra}-,  280. 
Jennings  if.  Paine,  358. 
Jewett  if.  Whitney,  489. 
Joannes  if.  Bennett,  409. 
Joannes  if.  Burt,  242. 
Johns  if.  Gittinga,  201,  336. 
Johnson  if.  Brown,  198,  204,  603,  604. 
Johnson  v.  Dalton,  146. 
Johnson  v.  Dicken,  214. 
Johnson  if.  Evans,  350,  382. 
Johnson  v.  Hedges,  530. 
Johnson  v.  Hudson,  587. 
Johnson  v.   Robertson,  191,  223,  28 

541,  543. 
Johnson  if.   Shields,  207,  211,  218,   237, 

288. 
Johnson  v.  Sledge,  198. 
Johnson  if.  Stebbins,  245,  289,  554,  551. 
Johnson  if.  Sutton,  362,  521. 
Johnson  if.  Tait,  57'.'. 
Johnston  if.  Lance,  326. 
Johnston  v.  Laud,  327. 


TABLE    OF    CASES. 


25 


Johnston  v.  McDonald,  495,  537. 

Johnston  v.  Morrow,  207,  215,  236. 

Jones  v.  Bewicke,  4G9,  551. 

Jones  v.  Cecil,  551. 

Jones  v.  Chapman,  195,  225,  325,  566. 

Jones,  Ex-parte,  371,  372. 

Jones  v.  Givin,  I'll. 

Jones  v.  Hearne,  222,  236. 

Jones  v.  Hungerford,  221. 

Jones  v .  Joice,  258. 

Jones  v.  Jones,  163,  601. 

Jones  v.  Littler,  265,  270,  273,  274. 

Jones  v.  Mackie,  440. 

Jones  v.  Marrs,  232,  515. 

Jones  v.  McDowell,  224. 

Jones  v.  Pritchard,  465. 

Jones  v.  Powell,  281. 

Jones  v.  Rivers,  477. 

Jones  v.  Stevens,  268,  509,  617. 

Joralemon  v.  Pomeroy,  181,  234,  238,  528, 

534. 
Jordan  v.  Lyster,  219,  268. 
Justice  v.  Kirlin,  479,  592,  600,  628. 


K. 


Kane  v.  Mulvany,  359,  368,  375,  439,  450. 

Karney  v.  Paisley,  602. 

Kay  v.  Fredrigal,  327. 

Kean  v.  McLaughlin,  232,  256,  601. 

Kearney  v.  Gough,  596. 

Keegan  v.  Robson,  613. 

Keeler  v.  Dusenbury,  467. 

Keene  v.  Ruff,  138,  139,  146. 

Keenholts  v.  Decker,   107,  293,  301,  304, 

489,  524,  603. 
Keensle  v.  Sass,  278. 
Keiler  v.  Lessford,  233. 
Kelly  v.  Craig,  549, 
Kelly  v.  Dillon,  198,  233,  326,  327. 
Kelly  v.  Huffington,  540,  541. 
Kelly  v.  Partington,   107,    116,   128,   182, 

241,  291,  292,  293,  495,  496,  599. 
Kelly  v.  Sherlock,  286,  453,  493. 
Kelly  v.  Tinling,  445, 
Kelmore  v.  Abdoolah,  454,  487. 
Kemp  v.  Housgoe,  287. 
Kendall  v.  Stone,  162,  301,  309,  315,  605. 
Kendillon  v.  Maltby,  302,  360,  362. 
Kenedy  v.  The  People,  118. 
Kennedy  v.  Dear,  328. 
Kennedy  v.  Gifford,   173,   174,   177,  186, 

323,  605. 
Kennedy  v.  Gregory,  325,  629. 
Kennedy  v.  Hilliard,  353. 
Kennedy  v.  Lowry,  491,  523. 
Kenney  v.  McLonghlin.  322,  494 
Kent  v.  Bonzey,  626. 
Kent  v.  David,  558. 
Kent  v.  Pocock,  287. 


Kerle  v.  Osgood,  287. 

Kern  v.  Towsley,  193,  227,  509. 

Kerr  v.  Force,  247,  248,  250,  342,  551,  554, 

556,  559. 
Kerschbaugher  v.  Slusser,  524. 
Kershaw  v.  Bailey,  351. 
Keson  v.  Barclay,  435. 
Keyworth  v.  Hill,  153,  502. 
Keyzor  v.  Newcomb,  283. 
Kidder  v.  Parkhurst,  251. 
Kiene  v.  Ruff,  519. 
Killick  v.  Barnes,  220. 
Kilmore  v.  Abdoolah,  454,  487. 
Kimmel  v.  Kimmel,  81. 
Kincade  v.  Bradshaw,  613,  614. 
Kine  v.  Sewell,  320,  382,  405,  418,  599. 
King  v.  Bagg,  180. 
King's  Case,  247. 
King  v.  Fisher,  370. 
King  v.  Lake,  69,  169,  175. 
King  v.  Parsons,  329. 
King  v.  Root,  81,  364. 
King  v.  Sea  Ins.  Co.,  351. 
King  v.  Shore,  279,  2S0. 
King  v.  Townsend,  351,  543,  641. 
King  v.  "Waring,  150,  424,  436,  544,  598. 
Kiug  v.  Watts,  405,  543, 
King  v.  Whitley,  566. 
King  v.  "Wood,  172,  241. 
Kingsley  v.  Bill,  491. 
Kinnersly  v.  Cooper,  170. 
Kinney  v.  Hosea,  2u7,  209,  490,  598. 
Kinney  v.  Kash,  265,  266,  270,  2S6,  568, 

595. 
Kirby  v.  Simpson,  580. 
Kirk  v.  Nowell,  549. 
Kirkaldy  v.  Paige,  475,  607. 
Kirksey  v.  Fike,  192. 
Kitchenman  v.  Skeel,  491. 
Klein  v.  Hentz,  499. 
Kloppenburg  v.  Xeefus,  465. 
Kneeland  v.  Rogers,  502. 
Knickerbacker  v.  Colver,  435. 
Knickerbocker  Ins.  Co.  v.  Ecclesine,  464. 
Knight  v.  Foster,  323,  490,  613,  623. 
Knight  v.  Gibbs,  292,  296,  411. 
Knight  v.  Knight,  370. 
Knight  v.  Wilcox,  106,  107. 
Knightley  v.  Birch,  491. 
Knightly  v.  Marrow,  533. 
Knobel  v.  Fuller,  624. 
Koenig  v.  Ritchie,  395,  416. 
Kramer  v.  "Waymark,  498. 
Krebs  v.  Oliver,  409. 
Krom  v.  Sehoonmaker,  127,434. 
Kunkel  v.  Markell,  602. 


Lafone  ?\  Smith,  436,  496. 
Laine  '•.  Wells,  012. 
Lake  v.  Button,  327,  329. 


26 


TABLE   OF   CASES. 


Lake  v.  King,  344,  350,  351. 

Lambert  v.  Pharis,  618. 

Lamb's  Case,  519. 

Lamos  v.  Snell,  61*7,  618. 

Lancaster  v.  French,  278. 

Lancey  v.  Bryant,  484. 

Landlia  v.  Shanklin,  613,  622. 

Lane  v.  Applegate,  435,  436. 

Lane  v.  Howman,  553. 

Langdon  v.  Young,  146,  213,  214. 

Langley  v.  Colson,  221. 

Lansing  v.  Carpenter,  245,  286,  289. 

Lansing  v.  Smith,  57. 

Lanter  v.  McEvven,  601. 

Larkins  v.  Tarter,  326. 

Lamed  v.  Buffington,  600,  625,'  626. 

Lassels  v.  Lassels,  287. 

Lathrop  v.  Hyde,  350,  382. 

Latimer  v.  West.  Morning  News  Co., 
308,  317,  445,456. 

Laurie  v.  Wells,  226. 

Law  v.  Cross,  476. 

Law  v.  Scott,  432,  587. 

Lawler  v.  Earle,  400,  623. 

Lawless  v.  Anglo-Egyptian  Cotton  Com- 
pany, 393,  411,  456. 

Lawson's  Case.  153. 

Lawton  v.  Hunt,  551. 

Lawyer  v.  Smith,  492. 

Lay  v.  Lawson,  395. 

Layer's  Case,  586. 

Layer  v.  Begg,  399,  400. 

Lay  ton  v.  Harris,  68,  154. 

Lea  v.  White,  349,  355. 

Leach  v.  Thomas,  490. 

Leddy  v.  Tousey,  81. 

Lee  v.  Bennett,  591. 

Lee  v.  Huson,  61 1 1 . 

Lee  v.  Kane,  522. 

Lee  v.  Robertson,  227,  475,  608. 

Lee  v.  Swan,  2ti{.>. 

Lee  v.  Village  of  Sandy  Hill,  157. 

Leete  v.  Hart,  217. 

Le  Fanu  v.  Malcolmson,  165,  262,  501,  588. 

Lehman  v.  City  of  Brooklyn,  97. 

Leister  v.  Smith,  325,  629. 

Le  Merchant's  Case,  5S6. 

Lent  v.  Butler,  475. 

Lenthall's  Case,  238. 

Leonard  v.  Allen,  165,  593,  598,  602,  618, 
.620. 

Lester  v.  Perryman,  348,  397. 

Lester  v.  Wright,  628. 

Letton  o.  Young,  601,  606. 

Lever  v.  Torrey,  489. 

Levermore  ;■.  Martin,  229. 

Levi  v.  Milne,  482,  483,  494. 

Lewin  v.  Edwards,  490. 

Lewis  v.  Acton,  187. 

Lewis  v.  Allcock,  116. 

Lewis  ?•.  Babcock,  501. 

Lewis  v.  Black,  230,  333,  515. 

Lewis  v.  Chapman,  124,  129,  273,  406, 
412,  478,  602. 


Lewis  v.  Clement,  369. 

Lewis  v.  Few,  353,  378,  381,  433,  370,  584. 

Lewis  v.  Hawley,.273,  274. 

Lewis  v.  Levy,  185,   363,  367,  368,  370, 

373,  376. 
Lewis  v.  Niles,  323. 
Lewis  v.  Soule,  164,  229. 
Lewis  v.  Walter,  201,  255,  260,  325,  327, 

368,  553,  569. 
Liddle  v.  Hodges,  126,  401,  599,  608. 
Lidster  if.  Barrow,  464. 
Like  v.  McKinstry,  309,  316. 
Lillier'.  Price,  130,  612. 
Linck  v.  Kelley,  233. 
Lincoln  v.  Chrisman,  604,  619. 
Linden  v.  Graham,  162,  309,  315. 
Lindenmuller  v.  The  People,  99. 
Lindley  v.  Horton,  248,  272. 
Lindsey  v.  Smith,  237,  287,  517,  528. 
Linney  ».  Malton,  233,  626. 
Linville  v.  Earlywine,  146,  213. 
Lipe  V.  Eissenlord,  107. 
Lister  ».  McXeal,  580. 
Lister  v.  Perryman,  397,  348. 
Lister  v.  Wright,  146. 
Litman  v.  West,  280. 
Little  v.  Barlow,  221. 
Little  v.  Clements,  485. 
Littlejohn  v.  Greeley,  125,  131,  250,  264, 

269.  472,  603. 
Littler  v.  Thompson,  371. 
Litton  v.  Young,  493. 
Livingston  ;•.  Cheatham,  248. 
Livingston  v.  Rogers,  490. 
Lloyd  v.  Morris,  490,  491. 
Lockwood  v.  Lockwood,  58. 
Logan  v.  Steele,  187,  198. 
London  v.  Eastgate,  278,  283. 
Long  v.  Brougher,  333,  342. 
Long  o.  Chubb,  596,  603. 
Long  v.  Eakle,  454,  483. 
Long  v.  Fleming,  577. 
Long  i>.  Hitchcock,  498. 
Long  v.  Long,  499. 
Longman  v.  Pole,  501. 
Loomis  v.  Swick,  567,  507. 
Loubz  v.  Hafner,  57. 
Loughead  v.  Bartholomew,  472. 
Lovett  v.  Wellor.  314. 
Lowe  v.  Harwood,  lu4,  162,  315. 
Lowenstein  w.  The  People,  111. 
Loyd  r.  Pearce,  221. 
Lucan  ?'.  Cavendish,  466. 
Lucan  v.  Smith,  550,  612. 
Lncas  ».  Nichols,  234,  477. 
Ludwell  v.  Hole,  276. 
Lukehart  v.  Byerley,  181,  197,  209.  522, 

529. 
Lnmbyv.  Allday,  265,  271,  568. 
Lumley  v.  Gye,*300. 
LumpMns  v.  Justice,  179,  504. 
Lntban  v.  Berry,  626. 
Luther  v.  Skeen,  618,  620. 
Lyle  v.  Classon,  137,  141,  490,  520. 


TABLE    OF    CASES. 


27 


Lynch  v.  Henderson,  46V. 
Lynch  v.  Knight,  293. 


M 


McAlexander  v.  Harris,  236,  630,  631. 

McAlister  v.  Sibley,  621. 

McAnnally  v.  Williams,  193. 

McBean  v.  Williams,  578. 

McBrayer  v.  Hill,  233,  234. 

McBride  v.  Ellis,  249. 

McCabe  v.  Cauldwell,  375. 

McCabe  v.  Platter,  598,  617. 

McCampbell  v.  Thornburgh,  621. 

McCarty  v.  Barrett,  195. 

McClaughry  v.  Wetmore,  229,  232,  527. 

McClintock  v.  Crick,  567,  626. 

McClurg  v.  Ross,  199,  215. 

McCluskey  v.  Cromwell,  161,  534. 

McCoombs  v.  Tuttle,  142,  567,  583,  592. 

McConnell  v.  McCoy,  566. 

McConnell  v.  McVenna,  566. 

McCorkle  v.  Binns,  130,  246,  248,  588. 

McCuen  v.  Ludlam,  199,  207,   209,  214, 

237,  289,  291,  527. 
McDaniel  v.  Baca,  162,  309,  314,  316. 
McDonald  v.  Murchison,  605. 
McDougall  v.  Claridge,  399. 
McDougall  v.  Sharp,493. 
McFadzen  v.  Mayor  of  Liverpool,  456. 
McGee  v.  Sodusky,  597. 
McGee  v.  Wilson,  208,  233. 
McGlenery  v.  Keller,  601,  614. 
McGough  v.  Rhodes,  229,  505,  558. 
McGovern  v.  Manifee,  592. 
McGowan  v.  Manifee,  167,  625. 
McGrath  v.  Cox,  586. 
McGregor  v.  Gregory,  170,  184,  201,  548, 

563. 
McGregor  v.  Thwaites,  245,  327,  364. 
McGuire  v.  Blair,  286. 
Mcintosh  v.  Matherly,  583. 
Mclntyre  v.  McBean,  391,  399. 
Mclvor  v.  McCabe,  145. 
McKee  v.   Ingalls,  129,  197,  215,  434,  435, 

567,  598,  599. 
McKennon  v.  Geen,  224. 
McKinley  v.  Robb,  176,  232,  332,  477,  481, 

614. 
McLaughlin  v.  Russell,  590. 
McLeod  v.  Murphy,  268. 
McLaughlin  v.  Russell,  166. 
McManus  v.  Jackson,  228,  241. 
McMillen  v.  Birch,  242,  256,  284. 
McNab  v.  McGrath,  187,  222. 
McNally  v.  Oldham,  74,  338,  544.    ♦ 
McNaught  v.  Allen,  577. 
McNutt  v.  Young,  617. 
McPherson  v.  Daniels,  130,  131,  325. 
Macdougall  v,  Maguire,  564. 
MacGill,  Ex-parte,  350. 


Macauley  v.  Shackell,  467,  471. 

Mackay  v.  Ford,  240,  357. 

Macleod  v.  Wakely,  445. 

Maconnehey  v.  The  State,  434. 

Madison  Ave.  Baptist  Church,  Re,  309. 

Magee  v.  Stark,  230. 

Mair  v.  Kealy,  317. 

Maitland  v.  Bramwell,  385,  387,  397,  411. 

Maitland  v.   Goldney,  104,  116,  129,  262, 

325. 
Malachy  v.  Soper,  162,  308,  309,  315,  316. 
Mallison  v.  Sutton,  164. 
Malone  v.  Stewart,  233,  241,  272. 
Malone  v.  Stillwell,  153. 
Malony  v.  Dows,  541. 
Manby  v.  Witt,  321,  418,  426. 
Mangan  v.  Atterton,  156. 
Manly  v.  Cory,  576. 
Manning  v.  Clements,  260,  327,  550. 
Manning  v.  Fitzherbert,  544. 
Mapes  v.  Weeks,  323,  326,  327,  626. 
Maretzek  v.  Cauldwell,  555,  561. 
March  v.  Davison,  179,  281,  467. 
Markham  v.  Russell,  486,  603,  629. 
Marsden  v.  Henderson,  538. 
Marsh  v.  Davisoo,  260. 
Marsh  v.  Elsworth,  354. 
Marsh  v.  Marsh,  646. 
Marshall  v.  Addison,  237. 
Marshall  v.  Dean,  230. 
Marshall  v.  Gunter,  350,  355,  480,  491. 
Marshall  v.  Martin,  496. 
Marston  v.  Dennis,  238. 
Marten  v.  Van  Schaick,  157,493. 
Martin  v.  Desnoyer,  196,  225,  477,  493. 
Martin  v.  Hooker,  597. 
Martin  v.  Kennedy,  465. 
Martin  v.  Loei,  594,  625. 
Martin  v.  Mattison,  544. 
Martin  v.  Melton,  228. 
Martin  v.  Xutkin,  57. 
Martin  v.  Stillwell,  207,  208,  237. 
Martin  v.  Van  Schaick,  157,  493. 
Martin  v.  Strong,  410. 
Martinere  v.  Mackay,  183,  643. 
Martyn  v.  Burlings,  279. 
Martyn  v.  Williams,  581. 
Marzetti  v.  Williams,  58,  273. 
Masham  v.  Bridges,  287. 
Mason  v.  Keeling,  434. 
Mason  v.  Mason,  598. 
Mason  v.  Thompson,  184. 
Matthew  v.  Crass,  2'.»4. 
Matthews   v.  Beach,  373,  481,  483,  4S6, 

562,  564. 
Matthews  v.  Davis,  615,  618. 
Matthews  v.  Huntley,  598. 
Mawe  v.  Pigott,  247,  252. 
Maxwell  v.  Allison,  164. 
Maxwell  v.  Hogg,  91. 
May  v.  Brown,  570,  591,  627,  631. 
Maybee  v.  Avery,  614. 
Maybee  v.  Fisk,  165,  177. 
Mayer,  Be,  372. 


28 


TABLE    OF   CASES. 


Maynard  v.  Beardsley,  628,  631. 
Maynard  v.  Fireman's  Ins.  Co.,  456. 
Mayne  v.  Digle,  210. 
Mayne  v.  Fletcher,  155,  158,  5S9. 
Mavatt  v.  Gibbons,  220. 
Mayrant  v.  Richardson,  248,  433. 
Mays  v.  Sample,  236. 
Mayson  v.  Sheppard,  224,  492. 
Mead  v.  Daubigny,  603. 
Mead  v.  Perkins,  280. 
Mead  v.  Axe,  161. 
Mears  v.  Griffin,  487,  493. 
Mebane  v.  Sellars,  228. 
Medaugh  v.  Wright,  601. 
Melton  v.  The  State,  245. 
M'Elveney  v.  Conellan,  586. 
Mercer  v.  Sparks,  130. 
Mercer  v.  Whall,  472. 
Merchants'  Bank  v.  Curtis,  435. 
Merrill  v.  Peaslee,  567. 
Merry  weather  v.  Nixon,  502. 
Mersey  Nav.  Co.  v.  Douglass,  145. 
Meserole  v.  Goldsmith,  91. 
Metcalf  v.  Markham,  466. 
Metcalf  v.  Williams,  585. 
Metropolitan  Saloon  Omnibus  Co.  v.  Haw- 
kins, 458,  469. 
Meyer  v.  Schultz,  562. 
Mezzara's  Case,  168. 
Middleton  v.  Barned,  586. 
Milan  v.  Burnsides,  364. 
Miles  v.  Oldfield,  237,  239. 
Mile3  v.  Spencer,  323,  326. 

Miles  v.  Van  Horn,  172,  235,  580,  597. 

Miller  v.  Buckdon,  193. 

Miller  v.  Butler,  149,  150,  166,  245,  501, 
599. 

Miller's  Case,  242. 

Miller  v.  Fenton,  502. 

Miller  v.  Graham,  549. 

Miller  v.  Gunn,  498. 

Miller  v.  Hope,  360. 

Miller  v.  Houghton,  235. 

Miller  v.  Kerr,  326,  605. 

Miller  v.  Maxwell,  163,  164,  170. 

Miller  v.  Miller,  178,  187,  208,  236,  566, 
567. 

Miller  v.  Parish,  208,  234,  511,  538. 

Millett  v.  Hulton,  247. 

Millier  v.  Shepherd,  92. 

Milligan  v.  Thorn,  517,  528,  544. 

Millison  v.  Sutton,  608. 

Mills  v.  Monday,  138. 

Mills  v.  Taylor,  190,  222. 

Mills  >'.  Wimp,  208,  237. 

Minesinger  v.  Kerr,  622,  623. 

Minnes  v.  Johnson,  502. 

Minter  v.  Stewart,  203. 

Mitchell  v.  Burden,  340,  341,  560. 

Mitchell  /•.  Jenkins,  123. 

Mix  v.  Woodward,  164, 165,  193,  481,  534, 
605. 

Moberly  v.  Preston,  233,  238,  323,  325, 
327. 


Moffat  v.  Sackett,  494. 

Moises  v.  Thornton,  282,  514. 

Moloney  v.  Bartley,  111,  364,  459,  588. 

Moloney  v.  Dows,  145. 

Monkman  v.  Shepherdson,  201. 

Montgomery  v.  Deeley,  214. 

Montgomery  v.  Richardson,  549. 

Montifiori  v.  Montifiori,  630. 

Moody  v.  Baker,  300,  302,  493. 

Moon  v.  Towers,  157. 

Moor  v.  Foster,  269. 

Moor  v.  Roberts,  468. 

Moore  v.  Ames,  360. 

Moore  v.  Bennett,  182,  247. 

Moore  v.  Bond,  566. 

Moore  v.  Clay,  628. 

Moore  v.  Horner,  231. 

Moore  v.  Meagher,  291,  293,  543. 

Moore  v.  Oastler,  590,  628. 

Moore  v.  Stevenson,  342,  602. 

Moore  v.  Syne,  268. 

Moore  >>.  Terrill,  338. 

Morehead  v.  Jones,  176,  622. 

Morey  v.  Newfane  Township,  435. 

Morgan  ;•.  Lingen,  242,  248,  272. 

Morgan  v.  Livingston,   166,  16S,  225,  229, 

516,  567,  606. 
Morris  v.  Barker,  602,  624. 
Morris  v.  Barkley,  238. 
Morrison  v.  Belcher,  450. 
Morris  v.  Duane,  325. 
Morris  v.  Langdale,  258,  268,  299,  617. 
Morrison  v.  Harmer,  338,  495,  615. 
Morrison  v.  Moat,  371. 
Morrow  v.  McGaver,  332,  568. 
Morrow  v.  McGovern,  580. 
Morthland  v.  Cadell,  165. 
Moscati  v.  Lawson,  502. 
Moseley  v.  Moss,  328,  522,  529,  540. 
Moshier  v.  Utica  <fe  Sch.  R.  R.  Co.,  57. 
Mostyn  v.  Fabri^as,  145. 
Motley  r.  Shany,^.!. 
Mott  "'•.  Comstock,  273,  275. 
MonltoD  >•.  i  Jlapham,  373. 
Mountney  v.  Wattou,  201,  332,  369 
Mousley  v.  Harding,  626. 
Mower  v.  Watson,  232. 
Moyer  v.  Pine,  342,  624. 
Muchle  v.  Mulhollen,  232. 
Muck's  Case,  536. 
Mullet  v.  Hulton,  628. 
Mulvehall  v.  Mil  ward,  107. 
Mama  v.  Harmer,  554. 
Munn  e.  Morewood,  180. 
Murphy  v.  Antley,  196. 
Murphy  v.  Killet,  412. 
Murphy  v.  Stout,  608. 
Murray  v.  DeGross,  464. 
Musgr6ve  v.  Bovev.  284. 
Myers  v.  Curry.  493,  617. 
Myers  v.  Malcolm,  602,  629. 


TABLE    OF   CASES. 


29 


N 


Naber  v.  Miecock,  179. 

Nail  v.  Hill,  557. 

Napier  v.  Daniell,  492,  014. 

Nash  v.  Benedict,  247,  474,  602,  628. 

Neal  v.  Lewis,  491,  493. 

Neal  v.  Mallard,  235. 

Nearing  v.  Bell,  473. 

Needham  v.  Dowling,  357. 

Nelson  v.  Borchenius,  279,  593. 

Nelson  v.  Evans,  323. 

Nelson  v.  Musgrave,  199,  248,  335. 

Nelson  v.  Patrick,  201. 

Nelson  v.  Robe,  354. 

Nelson  v.  Staff,  240,  295. 

Nesmith  v.  Atlantic  Mutual  Ins.  Co.,  472. 

Nestle  v.  Van  Slyke,  517,  567. 

Netle  v.  Harrison,  493.- 

Nettleton  v.  Dinehart,  498. 

Newbit  v.  Statuck,  227,  613,  614. 

Newbraugh  v.  Curry,  517. 

New  Haven  R.  R.  Co.  v.  Schuyler,  456. 

Newlyn  v.  Fasset,  211,  236. 

Newman  v.  Bailey,  555. 

Newman  v.  Harrison,  561. 

Newman  v.  Otto,  561,  562. 

Newton  v.  Masters,  237. 

Newton  v.  Rowe,  465,  499. 

Newton  v.  Stubbs,  287,  522. 

Nichols  v.  Badget,  237,  241. 

Nichols  v.  Guy,  242. 

Nichols  v.  Hayes,  222,  567,  571. 

Nichols  v.  Packard,  496,  527,  528,  529. 

Nichols  v.  The  People,  173. 

Nicholls  v.  Reeve,  491. 

Nicholson  v.  Lynes,  272,  284. 

Hiven  v.  Munn,  233,  516,  525. 

Nixon's  Case,  371. 

Noah's  Case,  253. 

Nolton  v.  Moses,  487. 

Norman  v.  Simons,  29S. 

Norris  v.  Elliott,  585. 

Norris  v.  Smith,  464. 

Northern  Railroad  v.  Miller,  123. 

Norton  v.  Gordon,  566. 

Norton  v.  Ladd,  171,  196. 

Norwich,  Bishop  of,  Case,  284. 

Novion  v.  Hullett,  146. 

Nutt's  Case,  154,  158. 

Nutting  v.  Goodridge,  498. 

Nye  v.  Otis,  196,  198,  523. 


o 


Oakes  v.  Barrett,  493. 
Oakley  v.  Farrington,  239. 
Obaugh  v.  Finn,  245,  276. 
O'Brien  v.  Bryant,  333. 
O'Brien  v.  Clements,  164,  245,  436,  440, 
517,  550,  612. 


O'Brien  v.  The  People,  434. 

O'Connell  v.  Mansfield,  189,  201,  331,  548. 

O'Conner  v.  O'Conner,  502. 

O'Connor  v.  Lloyd,  185. 

O'Connor  v.  Wallen,  556. 

Oddy  v.  Paulet,  414. 

Odiurne  v.  Bacon.  215,  239,  262,  270,  332. 

O'Donaghue  v.   McGovern,  364,  378,  384, 

385,  612. 
Offutt  v.  Earlywine,  146,  213,  613. 
O'Gara  v.  Eisenlohr,  112. 
Odgen  v.  Riley,  107,  179,  196,  197. 
O'Hanlon  v.  Myers,  215,  242,  284. 
O'Kesson  v.  Barclay,  435. 
Oldham  v.  Peake,  536. 
Oliver  v.  Bentinck,  363,  586. 
Olmstead  v.  Brown,  293,  298,  301. 
Olmstead  v.  Miller,  294,  566,  592. 
Ombony  v.  Jones,  274. 
Onslow  v.  Home,  63,  104,  211,  246,  265, 

289. 
Opdyke  v.  Marble,  467. 
Opdyke  v.  Weed,  131,  521. 
Oram  v.  Franklin,  207,  286. 
Ormsby  v.  Brown,  549. 
Ormsby  v.  Douglass,  332,  415,  608. 
Orpwood  v.  Barkes,  200,  572. 
Orpwood  v.  Parkes,  200,  572. 
Orr  v.  Skofield,  277. 
Orton  v.  Fuller,  221,  228. 
Osborne  v.  London  Dock  Co.,  468. 
Oswald's  Case,  61. 

Ostrom  v.  Calkins,  258,  273,  274,  493,  630, 
Owen  v.  McKean,  232,  465,  021,  023. 
Owens  v.  Roberts,  397. 
Owsley  v.  Montgomery  &c.  R.  R.  Co.,  450 


Packer  v.  Spangle,  228. 

Paddock  v.  Salisbury,  495,  617. 

Padmore  v.  Lawrence,  382,  419,  485. 

Padwick  v.  Wittcomb,  81. 

Page  v.  Fawcett,  169. 

Page  v.  Hatchett,  201. 

Paine  v.  Prestney,  236. 

Pallet  v.  Sargeant,  334,  608,  615,  622,  630. 

Palmer  v.  Edwards,  195,  287. 

Palmer  v.  Haight,  558. 

Palmer  v.  Haskins,  519,  602,  629. 

Palmer  v.  Hunter,  516. 

Paris  v.  Levy,  447. 

Parke  v.  Blackiston,  598. 

Parker  v.  Lewis,  224. 

Parker  v.  McQueen,  323,  326,  550,  559. 

Parker  v.  Meader,  188. 

Parker  v.  Mitchell,  358. 

Parker  Mills  v.  Commissioners  of  Taxes. 

257. 
Parker  v.  Raymond,  510,  538. 


30 


TABLE    OF    CASES. 


Parkes  v.  Prescott,  149. 

Parkhurst  v.  Ketchum,  617,  618. 

Parkins  v.  Scott,  148,  293,  302. 

Parmer  v.  Anderson,  174. 

Parmiter  v.  Coupland,  245,  453,  482,  483. 

Parret  v.  Parret,  236. 

Parret  v.  Carpenter,  272,  284. 

Parrctt  Nav.  Co.  v.  Stower,  564. 

Parry  v.  Collis,  513. 

Parsons  v.  Bellows,  523. 

Parsons  v.  Surgey,  379,  401. 

Parsons  v.  Young,  203. 

Pasley  v.  Freeman,  423. 

Pasley  v.  Kemp,  571. 

Passie  v.  Mondford,  219. 

Pater  v.  Baker,  162,  311,  315,  580,  581. 

Patten  v.  Greeley,  491. 

Patten  v.  Gourney,  152. 

Patterson  v.  Collins,  236,  273. 

Patterson  v.  Edwards,  190,  527,  528,  567. 

Patterson  v.  Patterson,  191. 

Patterson  v.  Wilkinson,  191,  528. 

Pattison  v.  Jones,  321,  405,  407,  423,  430, 

485,  599. 
Patton  v.  Hamilton,  494. 
Paul  v.  Harden,  491. 
Paul  v.  Halferty,  309. 
Payne  v.  Beaumorris,  284. 
Payson  v.  Macomber,  523,  549,  573. 
Peachell  v.  Watson,  501. 
Peake  v.  Oldham,  193  219,  238. 
Pearce's  Case,  170. 
Pearce  v.  Ormsby,  601,  605. 
Pearce  v.  The  State,  482. 
Pearce  v.  Whale,  268. 
Peard  v.  Jones,  281,  283. 
Pearse  v.  Rogers,  581. 
Pearson  v.  Le  Maitre,  603,  605. 
Pearson  v.  Picket,  465. 
Pearson  v.  Skelton,  502. 
Pechell  v.  Watson,  349. 
Peck  v.  Ellis,  502. 
Pegram  v.  Styron,  171. 
Peltier  v.  Mict,  600. 
Pelton  v.  Ward,  211,  229. 
Pemberton  v.  Colls,  285,  491. 
Penfold  v.  Westcote,  171,  197. 
Penn.  State  of  v.  Honey  man,  123. 
Penn.  State  of  v.  Lewis,  123. 
Pennyman  v.  Rabanks,  314. 
Penters  v.  England,  153. 
Pepper  v.  Gay,  287. 
Percival  v.  Hickey,  128,  146. 
Perdue  v.  Burnett,  207,  208,  209.  236. 
Perkins   v.   Mitchell,   249,  319,  353,  355, 

384,  3S8,  472,  541. 
Perring  v.  Harris,  613. 
Perrott  v.  Morris,  468. 
Perry  v.  Mann,  171,  174,  189,  327. 
Ferryman  v.  Lister,  397. 
Perselly  v.  Bacon,  193,  230. 
Petrie  v.  Rose,  597,  622,  629. 
Philadelphia  R.   R.   Co.  v.  Quiglev,  144, 
416,  456,  489. 


Phillips  v.  Badly,  284. 

Phillips  v.  Barber,  160,  195,  226. 

Phillips  v.  Beene,  574. 

Phillips  v.  Chapman,  466. 

Phillips  v.  Evre,  145. 

Phillips  v.  Hoeffer,  273,  274. 

Phillips  v.  Jansen,  138, 141,  144,  271,  279. 

Phillips  v.  Odell,  566. 

Phillips  v.  Wiley,  238. 

Phincle  v.  Vaughan,  228,  229. 

Pickard  v.  Collins,  128. 

Pickford  v.  Gutch,  282. 

Picton  v.  Jackman,  408. 

Pierce  v.  Ellis,  381,  382. 

Pierrepoint  v.  Sharpland,  475. 

Pierson  v.  Stroitz,  221. 

Pigot's  Case,  328. 

Pike  v.  Hauson,  57. 

Pikev.  Van  Wormer,  167,  170,  178,  179, 

235,  242,  506,  545. 
Pinckney  v.  Collins,  466. 
Pinero  v.  Goodlake,  373. 
Pippet  c.  Hearn,  523. 
Pisani  v.  Lawson,  465,  497. 
Pitt  v.  Donavan,  312. 
Pittock  v.  O'Neill,  367,  476,  479,  483. 
Pizani  v.  Lawson,  465,  497. 
Pledger  v.  Hitchcock,  233. 
Plunkettt-.  Cobbett,  330,587,  601. 
Poe  v.  Grever,  209,  212,  213. 
Poe  v.  Mendford,  281. 
Pond  v.  Hartwell,  523,  595. 
Pool  v.  Devers,  490,  60S. 
Pool  v.  Sacheverel,  371. 
Pope  v.  Welsh,  617. 
Popham  v.  Pickburn,  365,  381,  453. 
Poplett  v.  Stockdale,  501. 
Poppenheim  v.  Wilkes,  323,672. 
Porter  v.  Botkins,  621. 
Porter  v.  Henderson,  628,  630,  631. 
Porter  v.  Hughey,  241. 
Porter  v.  McCreedv,  549. 
Portman  v.  Stowell,  236. 
Potter  v.  Thompson,  494,  520,  569. 
Pott's  Case,  216. 
Potts  v.  Pace,  593. 
Potwrite  v.  Barrel,  238. 
Powell  v.  Cleaver,  212. 
Powell  v.  Jones,  199,  283. 
Powell  v.  Kane,  351. 
Powell  ;•.  Plunkett,  185,  342. 
Power  v.  Heming,  613. 
Power  o.  Miller.  S 
Power  v.  Price,  232,  516. 
Power  v.  Shaw,  234. 
Powers  v.  Dubois,  249,  264. 
Powers  v.  Presgroves,  620,  626. 
Powers  v.  Skinner,  332,  336,  337,  342,  624. 
Powers  v.  Smith,  484. 
Powis  i\  Smith,  121. 
Preckington's  Case,  244. 
Prettyman  v.  Shocklev,  273,  274. 
Price  v.  Wall,  603. 
Prichard  v.  Lloyd,  226. 


TABLE    OF    CASES. 


31 


Prickett  v.  Greatrex,  128. 

Pridham  v.  Tucker,  269. 

Prim)  v.  Howe,  216,  264,  266. 

Prior  v.  Wilson,  246,  277. 

Pritcbard  v.  Corporation  of  Georgetown, 

456. 
Proctor  v.  Owens,  235,  566. 
Proed  v.  Johnes,  2S1,  283. 
Prowse  v.  Loxdale,  496. 
Prudhomme  v.  Frazer,  581. 
Prynne  v.  Brown,  496. 
Puckett  v.  Greatrex,  128. 
Pngh  v.  McCarty,  228,  627. 
Pugh  v.  Neal,  515. 
Purdyw.  Carpenter,  131. 
Purdy  v.  Stacey,  237,  525. 
Purple  v.  Horton,  567,  621,  623. 
Pursell  v.  Archer,  569. 
Pybus  v.  Scudamore,  466. 
Pye  v.  Wallis,  294. 


Q 


Quigley  v.  Phil.  <fcc.  R.R.  Co.,  630. 
Quinn  v.  O'Gara,  197,  207,  208,  239,  246. 
Quinn  v.  Wilson,  550. 


R 


Raikes  v.  Richards,  591. 

Raineyi'.  Thorn bury,  230. 

Ralph  v.  Davye,  165. 

Ram  a.  Lamley,  348. 

Ramsdaie  v.  Greenacre,  270,  580,  581. 

Ramsey  v.  Elms,  186. 

Randall  v.  Brigham,  361. 

Randall  v.  Holsenbake,  334,  335,  604. 

Randell  v.  Butler,  208. 

Randle  v.  Beal,  240,  297. 

Ranger  v.  Goodrich,  233,  626. 

Rangier  v.  Hummell,   166,  499,  594. 

Ratcliff  v.  Lonfj,  178. 

Ratcliffe  v.  Shublev,  225. 

Rathbun  v.  Emigh,  267,  544. 

Rawlings  v.  Norbnry,  527,  594. 

Ra}'ner  v.  Kinney,  608. 

Read  v.  Ambridge,  177,  185,  218. 

Read  v.  Hudson,  273,  274. 

Me  Bronson,  373. 

lie  Chaplin,  440. 

He  Clements,  440, 

Rector  v.  Smith,  361,  362,  598. 

Redfern  v.  Todd,  238. 

Redman  v.  Pyne,  283. 

Redway  v.  Gray,  215,  222,  270. 

Reede  v.  Sweetzer,  442. 

Reeks  v.  Cooper,  223. 

Reeves  v.  Templar,  254,  481,  482. 


Regina  v.  Ardley,  219. 

Regina  v.  Hoardman,   121. 

liegina  v.  Boucher,  591. 

Regina  v.  Browne,  168,  476. 

Regina  v.  Bull,  111. 

Regina  v.  Cooper,  149. 

Regina  v.  Duffy,  440. 

Regina  v.  Foxby,  62. 

Regina  v.  Gathercole,  99. 

Regina  v.  Hetherington,  99. 

Regina  v.  Hicklin,  112,  451. 

Regina  v.  Hurt,  169. 

Regina  v.  Hutchins,  355. 

Regina  v.  Langley,  62,  287. 

Regina  v.  Lovett,  591. 

Regina  v.  Lowe,  497. 

Regina  v.  Marshall,  194. 

Regina  v.  Mawgridge,  124. 

Regina  v.  Mills,  63. 

Regina  v.  Newman,  323. 

Regina  v.  Thompson,  181. 

Regina  v.  Veley,  393. 

Regina  v.  Verrier,  490,  527. 

Readier  v.  Cabot,  622,  623,  624. 

Rehauser  v.  Schwerjrer,  524. 

Reid  v.  Delorme,  384. 

Reid  v.  Harper,  435. 

Reignald's  Case,  267. 

Remington  v.  Congdon,  376,378,  612. 

Rendall  v.  Hayward,  494. 

Respublica  v.  Dtiane,  92. 

Respublica  v.  Oswald, '373. 

Reston  v.  Pomfreicht,  294. 

Revis  v.  Smith,  353. 

Rex  v.  Abingdon,  110,  129,  154. 

Rex  v.  Alderton,  540. 

Rex  v.  Alexander,  158. 

Rex  v.  Almon,  150,  158. 

Rex  v.  Amphlett.  142. 

Rex  v.  Aylett,  528,  536. 

Rex  v.  Baillie,  386,  392. 

Rex  v.  Baxter,  165. 

Rex  v.  Bayley,  388. 

Rex  v.  Bear,  149,  523. 

Rex  v.  Berry,  565,  566. 

Rex  v.  Brereton,  520,  525. 

Rex  v.  Brown,  168. 

Rex  v.  Burdett,  136,  144,  146,  150,  4S2, 

592. 
Rexv.  Burke,  116. 
Rex  v.  Carlile,  366. 
Rex  v.  Cator,  591. 
Rex  v.  Clement,  370. 
Rex  v.  Cooper,  149. 
Rex  v.  Creevey,  248,  345. 
Rex  v.  Dean  of  St.  Asaph,  482. 
Rex  v.  Dixon,  112. 
Rex  v.  Dodd,  158. 
Rex  v.  Donnison,  589. 
Rex  v.  Dover,  149. 
Rex  v .  Drake,  149. 
Rex  v.  Edgar,  169. 
Rex  e.  Enes,  393. 
Rex  v.  Fisher,  158. 


32 


TABLE    OF    CASES. 


Rex  v.  Fleet,  3*70, 

Rex  v.  Foster,  230. 

Rex  v.  Gilliam,  370. 

Rex  v.  Girdwood,  146,  583. 

Rex  v.  Godfrey,  253. 

Rex  v.  Greepe,  527. 

Rex  v.  Griffin,  165. 

Rex  v.  Gutch,  158. 

Rex  v.  Hall,  592. 

Rex  v.  Hart,  373,  377,  589. 

Rex  v.  Harvey,  124,  248. 

Rex  v.  Hedges,  226. 

Rex  v.  Holt,  154,  323. 

Rex  v.  Home,  165,  175,  527. 

Rex  v.  Hunt,  509. 

Rex  v.  Hurt,  169. 

Rex  v.  Jenneaur,  402. 

Rex  v.  Johnson,  146,  583. 

Rex  v.  Kinnersley,  249. 

Rex  v.  Lambert,  182,  474. 

Rex  v.  Lee,  372,  373. 

Rex  v.  Lord  Abinger,  345. 

Rex  v.  Lord  Cochrane,  258. 

Rex  v.  Marsden,  517. 

Rex  v.  Matthews,  536. 

Rex  v.  May,  523. 

Rex  v.  Middleton,  146. 

Rex  v.  Miller,  482. 

Rex  v.  Moore,  112. 

Rex  v.  Osborne,  165. 

Rex  v.  Paine,  99,  149. 

Rex  v.  Pearce,  586,  589,  590. 

Rex  v.  Powell,  522. 

Rex  v.  Roberts,  329,  442. 

Rex  v.  Rosenstein,  150. 

Rex  v.  Salisbury,  349. 

Rex  v.  Shelly,  268. 

Rex  v.  Skinner,  353,  360. 

Rex  v.  Sutton,  435. 

Rex  v.  Taylor,  99. 

Rex  v.  Topham,  589. 

Rex  v.  Tutchiu,  443. 

Rex  v.  Watson,  146,  371,  583,  591. 

Rex  v.  Webster,  99. 

Rex  v.  Wegener,  138. 

Rex  v.  Williams.  149,  583. 

Rex  v.  Woodfall,  169,  479,  482,  630. 

Rex  v.  Wright,  345,  367. 

Reynell  v.  Sackfield,  222. 

Reynolds  v.  Tucker,  623,  627. 

Rhodes  v.  James,  597. 

Rice  v.  Cottrell,  585,  602. 

Rice  v.  Pidgeon,  295. 

Rice  v.  Simmons,  68. 

Rice  v.  Withers,  583,  626. 

Rich  v.  Holt.  237,  281,  336. 

Richards  v.  Boulton,  612. 

Richards  v.  Cohen,  496. 

Richards  v.  Richards,  624. 

Richardson  v.  Alien,  215,  240. 

Richardson  v.  Northrup,  617,  626. 

Richardson  v.  Roberts,  235,  585,608,  615. 

Richmond  v.  Dayton,  373. 

Rickett  v.  Stanley,  234,  238,  334. 


Ridley  v.  Perrv,  334,  618. 
Rigby  v.  Heron,  187,  504. 
Riggs  v.  Denniston,  245,  276,  279,   290, 

336,  338,  341,  551,  554,  563. 
Riley  v.  Byrne,  471. 
Riley  v.  Nugent,  493. 
Rineheart  v.  Potts,  230. 
King  v.  Wheeler,  356,  357. 
Rish  Allah  Bey  ;•.  Johnstone,  440. 
Rish  Allah  Bey  v.  Whitehurst,  367,  473. 
Roace  v.  Gar  van,  371. 
Roach  v.  Read,  169. 
Robbins  v.  Fletcher,  571,  605,  611. 
Bobbins  v.  Treadway,  286. 
Roberts  v.  Brown,  368. 
Roberts  v.  Camden,   167,   179,   185,  22S. 

540,  598,  599. 
Roberts  v.  Champlin,  232. 
Roberts  v.  Richards,  428. 

Roberts  v.  Roberts,  107,  293,  294,  541. 
Robertson  v.  Lea,  197,  229. 
Robertson  v.  McDougall  249,  417. 
Robertson  v.  Powell,  233. 
Robertson  v.  Wylde,  607. 
Robinettu  Ruby,  417,  571. 
Robins  v.  Hildredon.  19.",,  220. 
Robinson  v.  Drummond,  164,  608. 
Robinson  »•.  Harvey,  326. 
Robinson  v.  Jermyn,  252. 
Robinson  v.  Keyser.  171.  197,  505. 
Robinson  v.  Marehant,  58,   263,  273,  501, 

541,  544. 

Robinson  v.  May,  382,  392,  485,  599. 

Robinson  v.  Miller,  221. 

Robinson  v.  Wallis,  572. 

Robson  o.  Blackmail,  466. 

Rochester  White  Lead  Co.   v.  The  City  of 

Rochester,  362,  456. 
Rockweller  v.  Brown,  437,  472. 
Rodebur^h    v.    Hollingsworth,    172,    233, 

526,  540,  596. 
Roe  ?'.  Birkenhead  Railway  Co.,  456. 
Roella  v.  Follow,  228,  527. 
Rogers  v.  Clifton,  427,  599. 
Rogers  v.  Gravat,  240. 
Rodgcrs  r.  Lacey,  238,  238. 
Rogers  t>.  Macnamara,  329. 
Rogers  r,  Munns.  495. 
Rogers  v.  Spaulding,  384. 
Rolm  i'.  Steward,  2."'7.  "_7"'. 
Romayne  v.  Duane,  327,  598,  622.  629. 
Root  v.  King,   74,   128,  130,  131,  219,  29'\ 

327,433,438,466,    493,    495,  59S, 

603,  617. 
Root  v.  Lowndes,  125,  436,  604. 
Root  v.  Woodruff,  563. 
Rose  v.  Groves,  295,  542. 
Rose  well' s  Case,  537. 
Ross  v.  Pines,  128,  316. 
Ross  i'.  Ross,  493. 
Ross  v.  Rouse,  231,  232. 
Row  v.  Claris,.  172. 
Rowcliffe  v/Edmouds,  185,  225. 
Rowe  v.  Roach,  316,  521,  554. 


TABLE    OF    CASES. 


33 


Ruckman  v.  Cowt-11,  128. 

Rue  v.  Mitchell,  229. 

Rnmsey  v.  Webb,  327. 

Rundell  v.  Butler,  227,  492,  491,  C03 

Rankle  v.  Meyers,  326.   • 

Rush  v.  Kavanagh,  276,  279. 

Russ  v.  Brooks,  622. 

Russell  v.  Corne,  591. 

Russell  v.  Ligon,  247. 

Russel  v.  Wilson,  215,  240. 

Ruth  v.  Kutz,  491. 

Rutherford  v.  Evans,  474,  567,  596. 

Rutherford  v.  Moore,  197,  566. 

Ryallsv.  Leader,  365,  367,  374. 

Ryan  v.  Madden,  501. 

Ryckman  v.  Delavan,  165,  277. 

Ryckman  v.  Parkins,  493. 

Ryder  v.  Burke,  466. 


s 


Safford  v.  The  People,  81. 

Safford  v.  Wyckoff,  121,  128. 

Sale  v.  Marsh,  222. 

St.  Martin  v.  Desnoyer,  195,  225,  477, 493. 

St.  John  v.  St.  John's  Church,  502. 

Salenger  v.  Lusk,  546. 

Salter  v.  Brown,  240,  297. 

Sample  v.  Wynn,  598. 

Sampson  v.  Mackay,  496. 

Samuel  v.  Bond,  327,  549. 

Sanders  v.  Johnson,  493,  617,  624. 

Sanders  v.  Rollinson,  351,  587. 

Sanderson  v.  Hubbard,  514,  516. 

Sanderson  v.  Ituddes,  264. 

Sandford  v.  Bennett,   281,  323,  375  440 

472,  498. 
Sands  v.  Robison,  251,  361. 
Sandwell  v.  Sandwell,  584. 
Sanford  v.  Gaddis,  228,  231,  338,  515,  516, 

522,  558,  566,  567,  578. 
Sargent  v.  Hehnbold,  464. 

Sargent  v. ,  493. 

Saunders  v.  Bates,  522,  580,  581. 

Saunders  v.  Mills,  342,  367,  368,  630. 

Saunderson  v.  Jackson,  59. 

Saus  v.  Joerris,  327. 

Sauter  v.  McEwen,  613. 

Savage  ».  Robery,  540. 

Saville  v.  Jardine,  239,  496. 

Saville  v.  Sweene}',  499. 

Sawyer  v.  Eifert,  219,  617,  618. 

Sawyer  v.  Hopkins,  472,  510,  C02. 

Sayer  v.  Begg,  399,  400. 

Sayles  v.  Wooden,  551. 

Sayre  v.  Jewett,  491,  517,  528. 

Sayre  v.  Sayre,  618. 

Scanlan  v.  Cowley,  121. 

Scarll  v.  Dixon,  390. 

Schaus  v.  Putscher,  465. 


Scheckell  v.  Jackson,  439. 

Schenck  v.  Schenck,  138,  588,  592,  601. 

Schewer  /'.  Kleine,  470. 

Schock  v.  Mel  Ihesney,  348. 

Schoonover  v.  Rowe,  437. 

Schwartz  v.  Thomas,  585. 

Scobett  v.  Lee,  2 1 0. 

Scott  v.  Cook,  492. 

Scott  v.  Hallock,  545. 

Scott  v.  Hilliers,  216. 

Scott  v.  McKinnish,  233,  327,  328,  567, 
572,  601,  603,  606,  617,621,624, 
625. 

Scott  v.  Montsinger,  605. 

Scott  v.  Pebbles,  205,  326,  598. 

Scott  v.  Renforth,  567. 

Scott  v.  Seymour,  145. 

Scott  v.  Stansfield,  361. 

Scovill  v.  Geddings,  362. 

Scoville  v.  New,  547. 

Scovel  v.  Kingsley,  144. 

Seaman  v.  Bigg,  240. 

Seaton  v.  Cord  ray,  215. 

Secor  v.  Harris,  281,  284. 

Seely  v.  Blair,  433,  613,  016. 

Seely  v.  Cole,  564. 

Selby  v.  Carry er,  220,  221. 

Self  v.  Gardner,  335,  579. 

Sell  v.  Facy,  294. 

Sellars  v.  Killew,  258,  568. 
Sellars  v.  Tell,  535. 

Sellars  v.  Killen,  568. 
Sempsey  v.  Levy,  276,  533. 

Seneca  Co.  Bank  v.  Lamb,  259. 
Senior  v.  Medland,  380. 
Senter  v.  Carr,  620. 
Sergart  v.  Carter,  174. 
Setterman  v.  Eitz,  524. 
Severance  v.  Hilton,  597. 
Sewall  v.  Evans,  163. 
Sewell  v.  Catlin,  273,  275,  291,  417. 
Sexton  v.  Brock,  600. 
Sexton  v.  Todd,  233,  326. 
Seycroft  v.  Dunker,  273,  274,  275. 
Seymour  v.  Lutterworth,  447. 
Seymour  v.  Morrell,  617. 
Seymour  v.  Wilson,  120. 
Shackell  v.  Rosier,  502. 
Shaffer  v.  Knitzer,  211,  229,491. 
Shaftsbury's  Case,  466. 
Shalmer  v.  Foster,  537. 
Shank  v.  Case,  608. 

Sharp  v.  Mayor  of  New  York,  58,  456. 
Sharp  v.  Scoggin,  81. 
Sharp  v.  Stephenson,  334,  557,  569,  615. 
Sharp  v.  Williite,  514. 
Shattuck  v.  Allen,  215,  382,  482,  483. 
Shaver  v.  Linton,  495. 
Shaw  v.  Stine,  120. 
Shaw  v.  Thompson,  230. 
Shaw  v.  Wakeman,  280. 
Shay  v.  Tuolumne  Water  Co.,  4S7. 
Sheahan  v.   Collins,  327,  613    617     622 
624. 


34 


TABLE    OF    CASES 


Shearlock  v.  Beardsworth,  152. 

Sheckell  v.  Jackson,  630. 

Shecut  v.  McDowel,  171,  117. 

Sheddon  v.  Patrick,  180. 

Sheely  v.  BUzgs,  228. 

Sheffij  v.  Van  Deusen,  143. 

Sheldon  v.  Carpenter,  437. 

Shelfer  v.  Gooding,  357,  349. 

Shelford  v.  Gooding,  349,  357. 

Shellenbarger  v.  Xorris,  515. 

Shelton  v.  Nance,  247,  248,  327,  376. 

Shelton  v.  Simmons,  622. 

Shephard  v.  Merrill,  327,  333,  557,  560. 

Shephard  v.  Watrous,  435,  472. 

Shepherd  v.  Bliss,  578. 

Shepherd  v.  Wakeman,  235,  294. 

Sherry  v.  Freeking,  491. 

Shervvin  v.  Swindall,  123. 

Sherwood  v.  Chase,  185,  229,  230. 

Sherwood  v.  Gi  bert,  415. 

Shields  v.  Cunningham,  233. 

Shinier  v.  Bromenburg,  514,  517. 

Shinloup  r.  Ammerman,  228. 

Shipley  v.  Todhunter,  185,  245,  399,  583 

Shipman  v.  Burrows,  293,  541,  597. 

Shipp  v.  McCraw,  207,  212,  213. 

Shire  v.  King,  279,  280. 

Shirley  ».  Keatley,  415,  612,  621. 

Shock  v.  McChesney,  605. 

Shoe  and  Leather  Bank  v.  Thompson,  459. 

Shore  v.  Smith,  544. 

Shortly  v.  Miller,  601,  608,  613. 

Shoulty  v.  Miller,  613,  623. 

Showell  v.  Haman,  213. 

Shrimper  v.  Heilman,  605. 

Shroyer  v.  Miller,  516,  598. 

Shultz  v.  Chambers,  530. 

Shute  v.  Barrett,  493. 

Sibley  v.  Tomlins,  266,  270,  271. 

Sibley  v.  Tompkins,  270. 

Sibthorpe's  Case,  221,226. 

Sidgreaves  v.  Myatt,  233,  328. 

Sidman  v.  Mayo,  216,  525. 

Silvers  v.  Neralinger,  502. 

Simmons  v.  Holster,  224,  5S9. 

Simmons  v.  Morse.  47s. 

Simpson  v.  Barlow,  275. 

Simpson  v.  Dinsmore,  163. 

Simpson  v.  Downs,  416. 

Simpson  v.  Ilardie,  496. 

Simpson  v.  Robinson,  374,  473,  606,  608. 

Simpson  v.  Wiley,  586. 

Sims  v.  Kinder,  425,  612. 

Sinclair  v.  Charles  Phillipe,  258. 

Sinclair  v.  Fitch,  545. 

Skelton  u.  Seward,  496. 

Skinner  v.  Bronnenburg,  496. 

Skinner  v.  Grant,  270,  326,  332,  337,  567 
619. 

Skinner  ».  Kitch,  59. 

Skinner  ads.  Towers.  624. 

Skinner  v.  Shoppee,  496. 

Skinner  v.  White,  207,  241. 

Skutt  v.  Hawkins,  517. 


Slator  v.  Slator,  469. 

Sloan  v.  Petrie,  608. 

Slocum  v.  Kuykeudall,  566. 

Sloman  v.  Chisholm,  277. 

Sloman  v.  Dutton,  185,  224. 

Sluder  v.  Wilson,  228. 

Smale  v.  Hammon,  210,  213,  229. 

Smalley  v.  Anderson,  233,  234,  239,  323. 

Smalley  v.  Stark,  166,  594. 

Smart  v.  Blanchard,  140,  165,  166,  342, 

567,  592. 
Smayles,  v.  Smith,  267,  280. 
Smiley  v.  McDougal,  571. 
Smith  v.  Andrews,  280. 
Smith  v.  Ashlev,  130,  155. 
Smith  v.  Buckecker,  334,  342. 
Smith  v.  Bull,  146. 
Smith  v.  Carey,  530,  534,  535. 
Smith's  Case,  196,  236,  242,  243,  371. 
Smith  v.  Cleveland,  491. 
Smith  v.  Collins,  214. 
Smith  v.  Cooker,  501,  538. 
Smith,  Ex-parte,  371. 
Smith  v.  Gafford,  177/215,  504,  536. 
Smith  v.  Hamilton,  505. 
Smith  v.  Harrison,  440. 
Smith  u.  Higgins,  379,  610. 
Smith  v.  Hixon,  499. 
Smith  v.  Hobson,  500. 
Smith  v.  Hodsreskins,  236,  382. 
Smith  v.  Hollister,  540,  565,  566. 
Smith  v.  Howard,  124,  354. 

Smith  v.  Joyce,  260. 

Smith  v.  Kerr,  382,  435,  495. 

Smith  v.  Knowelden,  580,  581. 

Smith  r.  Lewis,  353,  354. 

Smith  v.  Lovelace,  600. 

Smith  v.  Matthews,  392,  418. 

Smith  v.  Mawhootl. 

Smith  v.  Miles,  178,  477,  593. 

Smith  v.  Minor,  235. 

Smith  v.  Parker,  331,  332. 

Smith  v.  Richardson,  330,  624. 

Smith  v.  Scott,  307,  374,613. 

Smith  v.  Silence,  233. 

Smith  v.  Smith,  209,  211,  232,  327,  328, 
.  580,  612. 

Smith  i'.  Spooner,  162,  309,  311. 

Smith  v.  Stewart,  198,  212,  326. 

Smith  v.  Taylor,  569. 

Smith  v.  Thackerah,  108. 

Smith  v.  Thomas.  488,  549,  613. 

Smith  v.  Tracv,  259. 

Smith  v.  Ward,  197. 

Smith  v.  Wilcox,  259. 

Smith  v.  Williams,  508. 

Smith  v.  Wood,  150,  247. 

Smith  v.  Wyman,  333,  605,  608. 

Smith  r.  Youmans,  376,  599. 

Smithies  v.  Harrison,  330,  334. 

Snag  r.  Grey,  281. 

Sna<j  v.  Gee,  174. 

Sneade  v.  Bradley,  314,  315. 

Sneed  v.  Davis,  418. 


TABLE    OF    CASES. 


35 


Snell  v.  Snow,  166,  178,  194,  536,  593. 

Snell  v.  Webbling,  168. 

Snow  v.  Judson,  307. 

Snow  v.    Witcher,  233,  333,  339,  552. 

Snowdon  v.  Linda,  247,  334. 

Snyder  v.   Andrews,   142,   190,  327,  328, 

477,  482,  483,  557. 
Soane  v.  Knight,  416. 
Society  of  Solicitors  v.  Robertson,  152. 
Solomon  v.  Law. son,  163,  530,  543. 
Solomon  v.  Medex,  263,  573. 
Soltan  v.  Deheld,  57. 
Somers  v.  Holt,  497, 
Somers  v.  House,  167,  178,  184. 
Somers  v.  Torrey,  351. 
Somerstaile's  Case,  240. 
Somerville  v.  Hawkins,  321,  426,  484, 485, 

599. 
South  v.  The  State  of  Maryland,  360. 
Southall  v.  Dawson,  294. 
Southam  v.  Allen,  258,  273,  274. 
Southee  v.  Denny,  185,  265,  282,  283,  581. 
Southold  v.  Daunston,  295. 
Southwick  v.  Stevens,  248,  493,  588,  595, 

627. 
Spall*.  Massey,  5S,  512. 
Sparkham  v.  Pye,  227. 
Sparrow  v.  Maynard,  213,  515. 
Speaker  v.  McKenzie,  241. 
Spencer  v.  Amerton,  379,  392. 
Spencer  v,  McMasters,  233,  493,  500,  526, 

608. 
Spencer  v.   Southwick,  167,  176,  333,  548. 
Sperry  v.  Freckin,  491. 
Spill  v.  Maule,  397,  599,  608. 
Spilling  v.  Carson,  602,  618,  622. 
Spooner,  Re,  372. 

Springhead  Spinning  Co.  v.  Riley,  91. 
Springstein  v.  Field,  598,  617,  624. 
Spruil  v.  Cooper,  611. 
Squier  v.  Gould,  541. 
Squire  v.  Johns,  274. 
Squires  v.  Whisken,  472. 
Stace  v.  Griffith,  485. 
Stafford  v.  Green,  214,  490. 
Stafford  v.  Grier,  229. 
Stallin.o-s  v.  Newman,  174,  409,  510,  625. 
Stamp  v.  White,  214. 
Stanfield  v.  Lover,  234,  565. 
Stanhope  v.  Blith,  180,  229. 
Stanley  v.  Boswel,  280. 
Stanley  v.  Osbaston,  274. 
Stanley  v.  Webb,  369,  373,  562,  623. 
Stannard  v.  Harper,  566. 
Stanton  v.  Andrews,  384. 
Stanton  v.  Smith,  274. 
Stark  v.  Chetwood,  309. 
Starr  v.  Gardner,  215,  284, 
Starr  v.  Harrington,  335,  559,  608. 
State.     See  The  People, 
State  v.  Atkins,  528. 
State  v.  Avery,  246. 
State  v.  Burnham,  129,341. 
State  v.  Burroughs,  207. 


193, 


613, 


State  v.  Butman,  327. 

State  v.  Chace,  168. 

State  v.  Croteau,  482. 

State  v.  Davis,  589. 

State  v.  Farley,  74,  246. 

State  v.  Henderson,   510,  527,  528,  530, 

537. 
State  v.  Honeyman,  123. 
State  v.  Jeandall,  74,  165,  482,  569,  588, 

603. 
State  v.  Lewis,  123. 
State  v.  Neese,  504. 
Si  at.'  v.  Qswald,  373. 
State  v.  Powers,  576. 
State  v,  Roulstone,  152. 
Stationers'  Co.  v.  Partridge,  91. 
Staverton  v.  Relfe,  221,  228. 
Ste adman  v.  Arden,  469. 
Stearns  v.  Cox,  603. 
Stearns  v.  Howe,  114. 
Stebbing  v.  Warner,  236. 
Steele  v.  Phillips,  557. 
Steele  v.   Southwick,    74,  130,  164, 

248. 
Stees  v.  Kemble,  168,  192,  623. 
Steever  v.  Beehler,  626. 
Steinman  v.  Clark,  553. 
Steinman  v.  McWilliams,  516,  598, 

614,  617,  618,  619. 
Stephens  v.  Corben,  196. 
Sterling  v.  Sherwood,  563. 
Stern  v.  Sevastopulo,  468. 
Sterry  v.  Foreman,  577. 
Stetson  v.  Jackson,  617. 
Stevens  v.  Ask,  173. 
Stevens  v.  Handlay,  171,  525,  527. 
Stevens  v.  Hartley,  301. 
Stevens  v.  Midland  Counties  Railway,  356, 
Stevenson  v.  Hayden,  239. 
Steventon  v.  Higgins,  236. 
Steward  v.  Young,  314. 
Stewart  v.  Howe,  215. 
Stewart  v.  Layton,  144. 
Stewart  v.  Nugent,  407. 
Stewart  v.  Wilkinson,  630. 
Stieber  v.  Wensel,  233,  238,  513. 
Sties  v.  Kemble,  578. 
Stiles  v.  Comstock,  335,  618. 
Stiles  v.  Kokes,  331,  365,  369,  558. 
Still  v.  Finch,  221. 
Stilwell  v.  Barter,  248,  332,  335. 
Stirley  v.  Hill,  199. 
Stitch  v.  Wisedom,  219. 
Stitzel  v.   Reynolds,   192,  208,   227.  491, 

528. 
Stockdale  v.  Hansard,  246,  470. 
Stockdale  v.  Onwhyn,  501. 
Stockdale  v.  Tarte,  477. 
Stocken  v.  Collen,  583. 
Stocking  v.  Clement,  252. 
Stockley  v.  Clement,  253. 
Stokes  i\  Arey,  227. 
Stokes  o.  Stnckcy,  225. 
Stone  v.  Clark,  174,  232,  286,  510,  514. 


36 


TABLE    OF    CASES*. 


Stone?'.  Cooper,  182,  195,  252,  507. 

Stone  v.  Smalcombe,  222,  236. 

Stone  v.  Varney,  617. 

Storey  v.  Chalfands,  403,  542. 

Storrer  v.  Audley,  216. 

Stout  v.  Wood,  1*46,  213,  214. 

Stow  v.  Converse,  217,  248,  334,  475,  598, 

601,  609,  621,  624. 
Strachey's  Case,  508. 
Strang  v.  Holmes,  435. 
Strang  v.  Whitehead,  541. 
Strauss  v.  Francis,  443,  448. 
Strauss  v.  Schwarzwaelden,  465. 
Street  v.  Bushnell,  579. 
Streety  v.  Wood,  385. 
Strieber  v.  Wensel,  510. 
Strode  v.  Holmes,  289. 
Strong,  Re,  372. 
Strong  v.  Foreman,  293,  542. 
Strong  v.  Kean,  486. 
Stroop  v.  Swartz,  499. 
Stuart  v.  Lovell,  444. 
Stubbs  t\  Marsh,  403. 
Stucker  v.  Davis,  530. 
Sturgenegger  v.  Tavlor,  240. 
Stutley  v.  Billhead,  287. 
Subley  v.  Mott,  500. 
Suiman  v.  Shilletto,  215. 
Sullivan  v.  Holker,  491. 
Sullivan  v.  Lenihan,  476. 
Sullivan  v.  White,  522. 
Sumner  v.  Buel,  163,  165. 
Sumner  v.  Utley,  284. 
Sutton  v.  Plumridge,  3S7,  581,  608. 
Sutton  v.  Smith.  150. 
Suydam  v,  Moffat,  353,  603. 
Swadling  v.  Tar]. lev,  424,  608,  635. 
Swails  v.  Butcher,  608, 
Swan  v.  ( 'lei  ami.    193. 
Swan  v.  Kavv,  337. 
Swan  v.  Tappan,  162,  163,  307,  320. 
Swearingen  v.  Stanley,  510. 
Sweetapple  v.  Jesse,  186,  5! 
Swift  v.  Dickerman,  489,  602,  603,   612, 

618,  620,  621,  62"7. 
Swiimey  v.  Nave,  521. 
Swithen   v.  Vincent,  153,  500,  501. 
S\m  v.  I  loeklev,  244. 
Symons  v.  1  192,  494,  601,  604, 

605. 
Symonds  v.  Carter,  235,  238. 


T 


Tabart  v.  Tipper,  130,  442,  I 

574,  575. 
Tabbe  v.  Matthews,  179. 
Tail  v.  Howard,  .vjs. 
Tait  v.  Culbertson,  153,501. 
Talbot's  Case,  22:;. 
Taibutt  v.  Clark,  323,  629 


Tallent  v.  Morton,  466. 

Talmadge  v.  Baker,  334. 

Tamlin  v.  Hamlin,  240. 

Tapley  v.  Wainwright,  201. 

Tappan  v.  Beardsley,  416. 

Tappan  v.  Wilson,  254,  442. 

Tardrew  v.  Brook,  471. 

Tarpley  v.  Blabey,  591. 

Tarleton  v.  McGawley,  57. 

Tasburgh  v.  Day,  315. 

Tassan  v.  Rogers,  205. 

Tate  v.  Humphrey,  605. 

Taverner  v.  Little,  504. 

Taylor  v.  Carpenter,  490. 

Tavlor  v.  (air,  563. 

Tavlor  v.  Casey,  191,  223. 

Tavlor  v.  Church,  131,  248,  263,  415,  490, 

501 
Tavlor  r.  t'rowland  Gas  Co.,  259. 
Taylor   v.  Hawkins,    320,   418,   426,   484, 

485. 
Tavlor  v.  Howe,  28S,  519. 
Tavlor  v.  Kneeland,    131,  164,  2< 

521,  5-7,  530,  5:::,  :>77. 
Tavlor  v.  Moran,  522,  565,  566,  603. 
Taylor  r.  Perkins.  242, 
Tax  lor  *•.  Richardson,  ! 
Taylor  v.  Robinson,  327,  482, 
Tavlor  v.  Rowan,  329. 
Taylor  v.  Starkey,  279,  280. 
Taylor  Georgia,  474. 

Taylor  r.  Stnrgingger,  144. 
Taylor  v.  Tally,  238,  294. 
Taylor  v.  The  State,  518. 
Teacy  w.  McEenna,  252 

198,  605, 

621. 
'i".  ague  '-.  Williams 
Teall  v.  1-Ylton,  361. 

ill-  v.  <  lement,  518,  5! 
Tempest  v.  Champers,  2 is,  4  77.  I  : 
v.  Clement,  17-1.  209,  510, 
Terry  v.  Bright,  233,522. 
Terry  v.  Hooper,  258,  27''.. 
Terwilliger  v.  Wan. Is.  '.'7.  291,  29S 

298,  301,  -      "'2. 

Tettal  v.  Osborne,  216. 
The  King.  Se<  J. 
The  People.    See  state. 
The  People  v.  Atkins,  250. 
The  People  v.  Compton,  371. 
The  People  v.  Crosswell,  71.  129,  I 
The  People  v.  Few. 
The  People  v.  Freer,  128,  373. 
The  People  v.  Jerome,  253. 
The  People  v.  McCann,  1 12. 
The  People  v.  Rathbun 

The  People  V.  Saxlon,  120. 
The  People  v.  Sturtevant.  371. 
i  he  People  v.  Townsend,  4S5. 
The  Queen.   See  Regiaa, 
The  state.    So,.  State. 
Thimmelthorp's  Case,  241. 
Thirman  r.  Mathews,  167,  209. 


TABLE    OF   OASES. 


37 


Thomas  v.  Axworth,  222. 

Thomas'  Case,  288. 

Thomas  v.  Churton,  861. 

Thomas  v.  Croswell,    290,  367,    369,  472, 

480,  527,  540,  603. 
Thomas*.  Dunaway,  608,  612,  622,  626. 
Thomas  v.  Hughes,  285. 
Thomas  v.  Jackson,   276. 
Thomas  v.  Piatt,  231. 
Thomas  v.  Ramsey,  153,  472. 
Thompson  v.  Barkley,  525. 
Thompson  v.  Bernard,  171,  107. 
Thompson  v.  Bowers,  327,  341,   342,  552, 

603,  621,  629. 
Thompson  v.  Grimes,  477,  4S1. 
Thompson  v.  Knott,  2  2  7. 
Thompson  v.  Shackell,  443,  446. 
Thompson  v.  Twenge,  271. 
Thorley's  Case,  68,  69. 
Thorley  v.  Kerry,  247. 
Thorn  v.  Blanchard,  130,  349,  351,  385. 
Thorn  v.  Moser,  129,  150,  417. 
Thornton  v.  Stephen,  471. 
Thrall  v.  Smiley,  554,  569,  506. 
Throgmorton  v.  Davis,  601,  604. 
Thurston  v.  Cornell,  120. 
Tibbetts  v.  Gooding,  187,  214,  222,  506. 
Tibbs  v.  Brown,  499,  598. 
Tichborne  v.  Mostyn,  371. 
Tifft  v.  Tifft,  157. 
Tighe  v.  Cooper,  170,  340,  556. 
Tilk  v.  Parsons,  316,  543. 
Tilley  v.  Hudson  River  R.  R.  Co.,  97. 
Tillotson  v.  Cheetham,  470,  493,  600,  031. 
Tilson  v.  Clark,  552,  558. 
Timmerson  v.  Morrison,  259. 
Tindall  v.  Moore,  507. 
Titus  v.  Follett,  262,  517,  518. 
Titus  v.  Sumner,  601,  630. 
Tobias  v.   Harland,    162,  306,  317,    512, 

580. 
Todd  v.  Bedford,  501. 
Todd  v.  Hastings,  267. 
Todd  v.  Hawkins.  409. 
Todd  v.  Rough,  207,  208. 
Tomlinson  v.  Brittlebank,  185,  195,  226, 

270,  481. 
Tompkins  v.  Wisener,  166. 
Tonneman  v.  DeWitt,  434. 
Toogood  v.  Spyring,  320,  408,  418,  485, 

599. 
Toose  Case,  223. 
Torbett  v.  Clare,  183,  209,  237. 
Torrance  v.  Hurst,  74. 
Torrey  v.  Field,  332,  334,  341,  348,  548, 

554. 
Townsend  v.  Barker,  240,  289. 
Tozer  v.  Mashford,  171,  217,  480 
Trabue  v.  Mayo,  171,  326,  492.  598. 
Traphagen  v.  Carpenter,  62(3,  629. 
Treanor  v.  Donahue,  493. 
Treat  v.  Browning,    194,   323,    325,    327, 

571,  629. 
Tremain  v.  Cohoes  Co.,  128. 


Tremaine  v.  Parker,  425. 

Trenton  Ins.  Co.  v.  Perrine,  295,  456,  458, 

542. 
Tripp  v,  Thomas,  470. 
Trottman  v.  Dunn,  :;.",.",. 
True  y.  Plumbey,  198,  469,  486,  489,  602. 
Tinman  ><.  Taylor,  167. 
Trumbull  v.  Gibbons,  138,  142,  146,  493. 
Trustees  &c.  v.  Utica,  <fcc,  57. 
Tuam  v.  Robeson,  285. 
Tupling  v.  Ward,  468. 
Turnbull  v.  Bird,  449. 
Turner  v.  Foxall,  275. 
Turner,  Ex-parle,  372. 
Turner  v.  Horton,  496. 
Turner  v.  Merryweather,    164,    198,    246, 

539. 
Turner?;.  Ogden,  210. 
Turner  v.  Pullman,  367. 
Turner  v.  Sullivan,  368. 
Turrill  v.  Dolloway,  477. 
Tuson  v.  Evans,  400,  477,  608. 
Tut  v.  Kerton,  240. 
Tutchin's  Case,  536. 
Tuthill  v.  Milton,  268,  511. 
Tuttle  v.  Bishop,  167,  186,  187. 
Tutty  v.  Alewin,  281. 
Tyler  v.  Tillotson,  164,  517. 


u 


Underhill  v.  Taylor,  627. 
Underbill  v.  Welton,  233,  234,  298. 
Underwood  v.  Parkes,  327,  330. 
Union  Turnpike  Co.  v.  Jenkins,  490. 
United  States  v.  Cornell,  124. 
United  States  v.  Morris,  482. 
United  States  v.  Paddleford,  212. 
Updegrove  v.  Zimmerman,  327,  608. 
Upsheer  v.  Betts,  335. 
Upton  v.  Penfold,  196. 
Usher  v.  Severance,  368,  477,  483,   598 
623. 


V 


Vail  v.  Owen,  362. 

Vanada's  Heirs  v.  Hopkins,  171. 

Van  Aikin  v.  Caler,  479,  483. 

Van  Ankin  v.  Westfall,  212,  214,  327. 

Van  Benschoten  v.  Yapel,  561. 

Van  Cleef  v.  Lawrence,  142. 

Vanderlip  v.  Roe,  169,  190,  479. 

Vanderslice  v.  Newton,  291. 

Van  Derveer  v.  Sutphin,   331,  332,   549, 

560,  603,  623. 
Vanderzee  v.  McGregor,  251,  385,  392. 


38 


TABLE    OF    CASES. 


Van  Deusen  v.  Sutpkin,  612. 

Van  Hook,  Re,  372. 

Van  Kenrin  v.  Griffis,  577. 

Van  Ness  v.  Hamilton,  207,  551,  554. 

Van  Pelt  v.  McGraw,  291. 

Van  Rensselaer  v.  Dole,  214,  223. 

Van  Rensselaer  v.  Jones,  86. 

Van  Sandau,  Re,  372. 

Van  Slyke  v.  Carpenter,  510. 

Van  Spike  v.  Cleyson,  402. 

Van  Steenburgh  v.  Kortz,  233. 

Van  Tassel  v.  Capron,  270. 

Van  Vechten  v.  Hopkins,   140,    161,  166, 

178,  477,  480,  481,  510,  527,  528, 537, 

538. 
Van  Wyck  v.  Aspinwall,  386,  392. 
Van  Wyck  v.  Guthrie,  386,  553. 
Vaughan  v.  Havens,  228,  527. 
Vansse  v.  Lee,  355. 
Venard  v.  Waton,  222. 
Vessey  v.  Pike,  201.  331,  622. 
Vickars  v.  Wilcoeks,  116.  298,  299. 
Vick  v.  Whitfield,  617,  618. 
Viele  v.  Gray,  107, 110, 112,  122, 128, 131, 

154,  247,  379,  521. 
Villers  v.  Monsley,  242,  248. 
Vincent  v.  Dixon,  601. 
Vinners  v.  Serell,  625. 
Vivian's  Case,  219,  275. 


w 


W.  v.  L.,  233. 

Wachter  v.  Quenzer,  333,  476,   562,   566, 

558,  592. 
Waddington  v.  Cousins,  691. 
Waffle  v.  Dillenback,  487. 
Wagaman  >\  Byers,  211,  215,  482,  :>7'.'. 
Waggonor  v.  Richmond.  'J2-. 
Wagner  v.  Holbrnnner,  327,  328,  621. 
Wagstaff  v.  Ashton,  327,  621. 
Waisted  v.  Hobnan,  R0. 
Waithmau  v.  Weal  i  r,  323. 
Wakefield  v.  Smithwiek.  400,  I":1,. 
Wakelin  v.  Norriss,  479,  487,  488,  626. 
Waklev  v.  Cooke,  247,  332.  437,493. 
Wakley  v.  Healey,  164, 179, 185,  186,  246, 

282,618,  540,  597. 
Wakley  v.  Johnson,  591,  626,  631. 
Walcotw.  Hind,  17". 
WaHen  (Sir  L.)  v.  Mitchell,  172,  211.  269. 
Wales  r.  Norton,  200. 
Walker  v.  Brogden,  286,  453,  466,  550. 
Walker  ;■.  Goe,  300.  349. 
Walker?'.  Winn,  248,  628. 
Wall  v.  Hoskins.  207.  213. 
Wallace  v.  Carroll,  419. 
Wallace  v.  Young.  221,  222. 
Wallis  v.  Mease,  196. 
Wahnsley  «.  Russell.  210. 


Walrath  v.  Nellis,  167,  228,  229. 

Walsh  v.  Henderson,  52.}. 

Walsh  v.  The  State,  522. 

Walters  v.  Beaver,  188. 

Walters  v.  Mace,  574,  578. 

Walters  v.  Nettleton,  498. 

Walters  v.  Snioot,  334,  615. 

Walton  v.  Singleton,  185,  191,  234,  238. 

Wandsworth  v.  Bentlev,  437. 

Ward  v.  Clark,  214,  22*9,  523. 

Ward  v.  Colvhan,  528. 

Ward  v.  Smith.  138,  402. 

Ward  v.  Thorne,  220. 

Ward  v.  Weeks,  148,  301. 

Warden  v.  Bailey,  362. 

Ware  v.  Clowney,  - 

Ware  v.  Curtledge,  519,       - 

Ware  v.  Johnson,  68,  101. 

Warrnan  v.  Hine,  481. 

Warrnuth  ?•.  Cramer,  519. 

Warne  v.  Chadwell,  605. 

Warner  v.  Paine,  319,  353,  355. 

Warr  v.  Jolly,  398. 

Warren  v.  Norman,  242. 

Warren  v.  Warren,  398,  583. 

Wartnaby,  lie,  646. 

Washburn  v.  Cooke,  125,  412.  413. 
Wason,  Ex-parte, 

Wason  v.  Walter,  7:;,  374. 

Waterhouse  v.  Hatfield, 

Waters  v.  Guthrie. 

Waters  v.  Jones,  1*7,  222. 

Watkin  ;•.  Hall,  323,  331,  333,  506,     I 

Watson  v.  Bennett,  456. 

Wataon  r.  Buck,  323. 

V.  ataon  v.  Churchill,  619. 
».  Hampton,  21  | 

Wataon  v.  McCarthy,  242. 

Watson  v.  Moore,  342,  605,  622,  681. 

A.\  atson  r.  Music,  528,  ">66. 

d  v.  Nicholas,   171.  197,  527,  584. 

Watson  v.  Reynolds,  309,  311,  315,  821. 

Watson  v.  Trask, 

Waft,  -  |    616. 

Watts  v.  Fraser,  149,  489,  501,  6» 

Watts  v.  Ore.  Dleaf, 

Watts  r.  Greenlee,  143,  215,  233,  238,  573, 

529. 
Weatberhead  v.  Armitn-je,  241,  27"-'. 
Weatherstone  v.  Hawkins  818,  426. 

•  r  r.  Devendorf,  362. 
Weaver  v.   Hemlrich.  I  2!'. 

Weaver  /•.  Lloyd.  200,  832,  474.  553. 
Weaver  r.  Ward,  434. 
Webb  v.  (Veil,  152,  158. 
Webb  v.  Nicholls,  280. 
Webb  >:  Poore,  223. 
Weblin  -■.  M.  yer,  167,  223. 
Weed  v.  Bibbins,  237,  .".27. 
Weed  v.  Poster,  217. 
Weekerly  v.  Geyer,  124. 
Weir  v.  llnss,  154,158,  164,  52 

587. 


TABLE    OF    CASES. 


39 


Wells  v.  Com.  Mut.  Ins.  Co.,  114. 

Wells  v.  Webber,  586. 

Welsh  v.  Eakle,  477. 

Wenman  v.  Ash,    138,  318,  322,  389,  484, 

485. 
Wesley  v.  Bennett,  182. 
West  v.  Smith,  540. 
West  v.  Walker,  622. 
Weston  v.  Dobniet,  358. 
Weston  v.  Lumley,  550. 
Weston  v.  Worden,  580. 
Westwood  v.  Cowne,  542. 
Wetherbee  v.  Marsh,  623. 
Wetherell  v.  Clerkson,  543. 
Wetsel  v.  Lennon,  516. 
Wharton  v.  Brook,  257,  282. 
Wharton  v.  Clover,  282. 
Wheatcraft  v.  Mouselev,  466. 
Wheatley  v.  Wallis,  225. 
Wheeler  v.  Haines,  537,  564. 
Wheeler  v.  Robb,  549,  567. 
Wheeler  v.  Shields,  323. 
Whitaker  v.  Bradley,  104,  258,  273,  274. 
Whitaker  v.  Carter,  335,  376,  514,  616. 
Whitaker  v.  Freeman,  522,  549,  617. 
White  v.  Carroll,  282,  354. 
White  v.  Delavan,  165,  177. 
White  v.  Harwood,  499. 
White  v.  Merritt,  307. 
White  v.  Nellis,  107. 
White  v.  Nicholls,  74,  130,  131,  319,  321, 

485,  521,  608. 
White  v.  Sayward,  166,  595. 
White  v.  Tyrrell,  610. 
Whitehead  v.  Fownes,  282. 
Whitley  v.  Adams,  397,  465. 
Whitfield  v.  South  East  R.  R.  Co.,  460. 
Whiting  v.  Smith,  523,  567. 
Whitlocke  v.  Musgrove,  163. 
Whittemore  v.  Ware,  547. 
Whittington  v.  Gladwin,  258,  273,  274. 
Wickham  v.  Baker,  465,  470. 
Wicks  v.  Macnamara,  469. 
Wicks  v.  Shepherd,  294. 
Widrig  v.  Oyer,  207,  235. 
Wierback  v.  Trone,  215. 
Wilborn  v.  Odell,  475,  566,  568,  569. 
Wilby  v.  Elston,  215,  234,  291,  613. 
Wilcox  v.  Edwards,  215. 
Wilcox  v.  Webb,  422. 
Wiley  v.  Campbell,  212,  570. 
Wilks'  Case,  197. 
WilletU>.  Harmer,  613,  614. 
Williams  v.  Beaumont,  459. 
Williams  v.  Bickerton,  193. 
Williams  v.  Breedon,  490. 
Williams  v.  Bryant,  233,  576. 
Williams  v.  Cooper,  580. 
Williams  v.  Cowley,  171. 
AVilliams  v.  Gardiner,  192. 
Williams  v.  Greenwade,  233,  598,  622. 
Williams  v.  Harrison,  566,  601. 
Williams  v.  Hill,  293. 
Williams  v.  lloldridge,  233,  242,  499. 


Williams  v.  Karnes,  215,  236,  246,247. 
Williams  v.  Minor,  565,  570,  605,  612,  615, 

621,  623. 
Williams  v.  Spears,  514. 
Williams  v.  Stott,  174,  240,  534,  574. 
Willis  v.  Shepherd,  289. 
Willmet  v.  Harmer,  613. 
Willymote  v.  Welton,  227. 
Wilmot  v.  McCabe,  467. 
Wilner  v.  Hold,  223. 
Wilson  v.  Beighler,  332,  505,  549. 
Wilson  v.  Cloud,  232. 
Wilson?/.  Collins,  361. 
Wilson  v.  Crow,  221. 
Wilson  v.  Fitch,  553. 

Wilson  v.  Goit,  97,  107,  293,298,489,602. 
Wilson  v.  Hamilton,  164. 
Wilson  v.  Harding,  230. 
Wilson  v.  Mayor  of  New  York,  362. 
Wilson  v.  McKenzie,  146. 
Wilson  v.  Mitchell,  576. 
Wilson  v.  Natrous,  567. 
Wilson  v.  Nations,  338,  608. 
Wilson  v.  Xoonan,  269,  290. 
Wilson  v.  Oliphant,  232. 
Wilson  v.  Reed,  381,  450,  487. 
Wilson  v.  Robbins,  233,  234,  238. 
Wilson  v.  Robinson,  608,  609. 
Wilson  v.  Runyon,  233,  541. 
Wilson  v.  Stephenson,  402. 
Wilson  v.  Tatum,  215. 
Winchell  v.  Strong,  626. 
Winter  v.  Donovan,  475,  565,  586. 
Winter  v.  Sumvalt,  239. 
Wiseman  v.  Wiseman,  537. 
Witcher's  Case,  240,  294. 
Witcher  v.  Richmond,  515,  516. 
Wogan  v.  Somerville,  569. 
Wolbreight  v.  Baumgarten,  516. 
Wolcott  v.  Hull,  617. 
Wolf  v.  Rodifer,  566. 
Wolmer  v.  Latimer,  624. 
Wonderly  v.  Nokes,  613. 
Wonson  v.  Sayward,  225. 
Wood  v.  Adams,  578. 
Wood  v.  Brown,  277,  523,  524. 
Wood  v.  Gunston,  358,  493. 
W^ood  v.  Jones,  470. 
Wood  v.  Pringle,  472. 
Wood  v.  Scott,  514,  516. 
Wood  v.  Southwick,  231,  614. 
Woodard  v.  Dowling,  245,  289. 
Woodbeck  v.  Keller,  358,  613,  614. 
Woodburn  v.  Miller,  247,  248,  590,  621. 
Woodbury  v.  Sackrider,  ISO. 
Woodbury  v.  Thompson,  234,  293. ' 
AVoodcock  v.  Houldsworth,  583. 
Woodfall's  Case,  129,  158. 
Woodgate  v.  Ridout,  368,  450. 
Woodruff  v  Richardson,  342. 
Woodruff  v.  Vaughan,  511. 
Woodruff  v.  Wooley,  289. 
Woodward  v.  Andrews,  550. 
Woodward  v.  Cotton,  459. 


40 


TABLE   OF    CASES. 


"Woodward  v.  Dowsing,  245,  289. 

"Woodward  v.  Lander,  385. 

Woolcott  v.  Goodrich,  198. 

Woolcott  v.  Hall,  328. 

Woolnotk  v.  Meadows,  167,  185,  198,  824. 

Woolsey  v.  Judd,  92. 

Wormuth  v.  Cramer,  524,  621. 

"Worth  v.  Butler,  146, 191,  233,  527. 

"Wren  v.  Weild,  316,  349,  469. 

Wright  v.  Britton,  585. 

Wright  v.  Clements,  522,  523,  525. 

Wright  v.  Lindsay,  214,  349. 

Wright  v.  Moorhouse,  287. 

Wright  v.  Orient  Mut.  Ins.  Co.  114. 

Wright  v.  Paige,  140,  167,  18S,  207,  203, 

237,  593. 
Wright  v.  Schroeder,  597,  598,  618. 
Wright  v.  Sullivan,  551. 
Wright  v.  Woodgate,  321,  400,  599,  6<>7. 
Wyant  v.  Smith,  214,  563. 
Wyatt  v.  Cocks,  580. 
Wyatt  v.  Gore,  138,  398,  586. 


Yardley  v.  Ellis,  221',  27!'. 


Yardrew  v.  Brook,  435. 

Yates  v.  Lansing,  361. 

Yates  Re,  372. 

Yearley  v.  Ashley,  236. 

Yeates  v.  Reed,  iU,  593,  625. 

York's  Case,  123. 

York  v.  Cecil,  221. 

York  v.  Pease,  359,  475,  607. 

Young  v.  Bennett,  617,  624. 

Young  v.  McCrae,  292,  306,  307. 

Young  v.  Miller,  207,  208,  237,  246. 

Young  v.  Ransom,  63. 

Young  v.  Slemons,  624. 

Yrisarri  v.  Clement,   260,  491,  495,  5S7, 

596. 
Yundt  v.  Yundt,  5  - 


Zeigw.  Orts,  519,  523,  524. 
Zenobia  v.  Axtell,  524. 
v.  Moore,  616. 


TABLE 

OF    REFERENCES    TO    REPORTS,   WITHOUT    THE    NAME 
OF  THE    CASE    PREFIXED. 


(The  references  are  to  the  page.) 


Aleyn,  187. 

Barnwell  &  Creswell,  123,  124. 

Bingham,  274. 

Bligh,  471. 

Bosanquet  &  Puller,  433. 

Bridgman,  342. 

Brownlow,  186,  312,  402. 

Bulstrode,  168,  197,  274,  299. 

Burrow,  128. 

Caine's  Reports,  143. 

Carthew,  171,  199. 

Clark  &  Finnelly,  123. 

Clayton,  113. 

Coke's    Reports,   63,   156,  170,  176, 

220. 
Croke,  Carolus,  231,  233,  509,  517, 

519,  537. 
Croke,  Elizabeth,  139,  179,  186,  237. 

519,  537,  566. 
Croke,  Jacobus,  168,  170,  180,  186, 

231,  436,  519,  543. 
Dalton,  236,  242,  269,  280. 
Dow  &  Clark,  363. 
English  Common  Law  Reports,  124. 
Freeman,  101,  277. 
Godbold,  186,  216. 
Goldsborough,  519,  537. 
Hammond,  272. 
Hardress,  187. 
Hetley,  282. 
Hill,  580,  631. 
Hobart,  170,  186,  229. 


Holt's  Reports,  233,  344. 

Howard's  Practice  Reports,  551,  618. 

Hutton,  342. 

Jenkin's  Century,  167,  223,  314. 

Keble,  233. 

Levins,  61,  230,  384. 

Lofft.  273,  274. 

Lord  Raymond,  73,  168,  220,  543. 

Metcalf,  153. 

Modern,  150,  154,  187,  233,  274,  280, 

283,  329,  536,  537,  543. 
Moor,  156,  158,  176,  323,  521. 
Noy,  101,  227,  519,  521. 
Owen,  521. 

Phillip's  Ecclesiastical  Cases,  101. 
Robinson's  Practice,  348. 
Rolle,  98,  123,  181 ,  510,  538. 
Salkeld,  344. 
Saunders,  fa,   130,  138,  139,  141  , 

143,  391,  498,  521. 
Selwyn,  500. 

Sergeant  and  Rawle,  124. 
Shaw  &  Dun,  363. 
Siderfin,  58,  222,  233,  244,  543. 
Strange,  69,  123,  221. 
Style,  187,  314,  521. 
Term  Reports,  127,  566. 
Ventris,  258,  543. 
Wendell,  269. 
Wilson  &  Shaw,  363. 
Wilson,  329. 
Yelverton,  176,  436. 


TA  B  LE 

OF  WORKS  REFERRED  TO,  EXCLUSIVE  OF  THE 

REPORTS,  ARRANGED  GENERALLY  BY 

THE  NAME  OF  THE  AUTHOR. 


(The  references  are  to  the  page.) 


American  Encyclopedia,  73. 

Addison  on  Wrong?,  74. 

Albany  Law  Journal,  143. 

Addison  on  Contracts,  433. 

Austin's  Lectures  on  Jurisprudence,  38,  93,  99,  105,  110,  118,  119,  121,  122, 

123,  124,  126. 
Anthon's  Law  Student,  105. 
American  Law  Journal,  81. 
American  Quarterly  Eeview,  127. 
Anecdotes  of  Imagination,  113. 
American  Leading  Cases,  222,  246. 
Areopagitica — a  Plea  for  Unlicensed  Printing,  438. 
Burke — Letter  to  his  Son,  57. 

Blackstone's  Commentaries,  62,  69,  88,  102,  123,  176,  329,  330. 
Bishop's  Criminal  Procedure,  152. 
Bishop  on  Criminal  Law,  59,  99,  149. 
Bishop  on  Marriage  and  Divorce,  63. 
Bouvier's  Law  Dictionary,  59,  62,  73,  123.  124,  129. 
Bacon's  Abridgment,  60,  68,  101,  154,  158,  214,  231,  402. 
Bacon's  Introduction  to  his  Reading  on  the  Statute  of  Uses,  66. 
Bacon's  Use  of  the  Laws,  88. 
Bacon's  Charge  against  Lumsden,  105. 
Bacon's  Maxims,  129. 
Baron's  War  (The),  69. 
Broom's  Commentaries,  68. 
Broom's  Maxims,  1 27. 
Bolingbroke  Lord,  Letter  of,  69. 
Burns'  Ecclesiastical  Law,  377,  402. 
Burnt  Njal,  The  Story  of,  68. 


44  TABLE    OF    WOEKS 

Borthwick  on  Libel,  69,  71,  98,  104,  121,  129,  153,  169,  171,  172,  176,  204, 

205,  329,  330,  349,  370. 
Bun-ill's  Law  Dictionary,  73,  76,  123,  127. 
Burrill  on  Presumptive  Evidence,  112. 
Burton,  66. 

Blackwood's  Magazine,  204. 
Book  of  Entries,  71. 
Barrington  on  Penal  Statutes,  176. 
Bacon  (Roger),  Works  of,  98. 
Bosworth's  Anglo-Saxon  Dictionary,  98. 
Bentham's  Principles  of  Morals  and  Legislation,  118. 
Bennett  &  Hurd's  Leading  Criminal  Cases,  482. 
Boston  Monthly  Law  Reporter,  196. 
Buller,  N.  P.,  186. 

Code  of  Procedure,  New,  York,  464,466,  470,  472,  501,  546,  547,  561,565,  579. 
Contempts,  Inquiry  into  Doctrine  concerning,  373. 
Campbell's  (Lord)  Lives  of  the  Chancellors,  113, 137,  344,  434,  471,  501. 
Campbell's  (Lord)  Lives  of  the  Chief  Justices,  91,  345,  378,  482. 
Code  Criminal,  76,  176. 
Capgrave's  Chronicle  of  England,  60. 
Coke's  Institutes,  61,  63. 
Calendar  of  State  Papers,  62. 
Chitty's  General  Practice,  68,  122. 
Cousin,  73. 

Constitution  of  United  States,  344,  438. 
Comyn's  Digest,  57,  73,  130,  155,  170,  205,  210,  217.  870. 
Cowen  &  Hills  Notes,  81,  614. 
Chitty  on  Pleading,  88,  558. 

Cooke  on  Defamation,  126.  165,  247,  258,  299,  338,  528, 594. 
Doria  &  McCreas'  Law  of  Bankruptcy,  405. 
Domat's  Civil  Law,  82,  247,  347,  502. 
Drewry  on  Injunctions,  91. 
Dugdale's  Origincs  Juridicales,  95. 
Disney's  Ancient  Laws  against  Immoralities,  95. 
Doddridge's  English  Lawyer,  128. 
Doctor  and  Student,  128. 
Danver's  Abridgment,  139. 
Dauske  Erobring,  of  England,  &c,  62,  97. 
Dunlap's  Admiralty  Practice,  346. 
English  Parliament,  Ordinances  of,  70. 
English  Pleader.  71. 

English  Record  Commissioners'  Publications,  95,  99,  105. 
Encyclopedia  Britannica,  65,  69,  73. 
Ecclesiastical  Commissioners'  Report,  101. 
Ethica  Christina,  98. 
Edinburgh  Review,  76,  88,  117,  219. 
Edwards'  Notes,  614. 
Edwards  on  the  Will,  118. 


REFERRED    TO.  45 

Essai  Bur  L'Histoire  de  la  Civilization  eu  Russie,  68. 

F inch's  Law,  70. 

Forsyth's  History  of  Trial  by  Jury,  98,  113,  114,  482. 

Fortescue,  De  Laudibus  Legurn  Angliee,  98,  128. 

Foss'  Judges  of  England,  137. 

Finlayson's  Common  Law  Procedure  Act,  505. 

Fourth  Estate  (The),  438. 

Federalist  (The),  438. 

Fraser's  Magazine,  370. 

George  on  Libel,  71,  73, 130,  155,  156,  177,  245  . 

Gurdon's  History  of  Court  Baron  and  Court  Leet,  9 "5. 

Greenleaf  on  Evidence,  125,  169,  433,  474,  490,  550,  602. 

Heineccius,  143. 

Howell's  State  Trials,  91,  113,  129. 

Hudson  on  the  Star  Chamber,  91. 

Hawkin's  Pleas  of  the  Crown,  73,  92,  212,  373. 

Hilliard  on  Torts,  60,  75,  123,  143,  153,  154. 

Highmore  on  Bail,  92. 

Hallam's  History  of  the  Middle  Ages,  98. 

Historical  Law  Tracts,  104. 

Hazard  on  the  Will,  118,  119. 

Hales'  History  of  the  Common  Law,  243. 

Hale's  Pleas  of  the  Crown,  123. 

Hazlett's  Essay  on  Wills,  137. 

Holt  on  Libel,  65,  67,  69,  75,  83,  95,  99,  124,  131,  139,  140.  142,  146,  149,  150, 

154,  155,  156,  158,  163,  165,  168,  169,  171,  176,  248,  25'),  266,  285,  370, 

376, 434,  438. 
Holt's  Nisi  Prius,  358. 

Heard  on  Libel,  69,  107,  152,  1G2,  178,  185,  195,  201,  208.  211.  214.  22G. 
Hume's  History  of  England,  343. 
House  of  Lords,  Journals  of,  129. 
Jacob's  Law  Dictionary,  58,  62,  64,  98,  104. 
Jones  on  Libel,  130. 

Johnson's  Institutes  of  the  Civil  Law  of  Spain,  95. 
Justinian  Institutes,  60. 
Kent's  Commentaries,  88,  129,  130,  329. 
Locke  on  the  Conduct  of  the  Understanding,  128,  176. 
Liberty  of  the  Press,  Essay  on,  438. 
Leigh's  Nisi  Prius,  245. 

Lewis  on  Authority  in  Matters  of  Opinion,  99. 
London  Gazette,  438. 

Libels,  Digest  of  the  Law  concerning,  69. 
Life  and  Letters  of  Joseph  Story,  99. 
London  Law  Magazine,  102,  112. 
London  Quarterly  Review,  136,  137,  449.  474. 
Loft,  Capel,  Essay  on  Libels,  73. 
Lieber  on  Civil  Liberty,  76,  89,  364. 
Lambard  Saxon  Laws,  95. 


46  TABLE    OF    WORKS 

Lappenburg's  History  of  England,  98. 

Leges  Gul.  Oonq.,  10  j. 

Lindley's  Studies  of  Jurisprudence,  122. 

Laws,  see  Statutes. 

London  Times,  346. 

London  Athenaeum,  122. 

Law  Times,  351. 

London  Law  Reporter,  247,  259. 

London  Quarterly  Review,  136,  137,  449,  474. 

Mayne  on  Damages,  489,  491,  493,  542. 

Mirrour  of  Justices,  60,  61. 

Milton  John,  Areopagitica,  438. 

Mackenzie's  Narrative,  70. 

May's  Law  and  Practice  in  Parliament,  346. 

Maunder,  73. 

Monthly  Law  Reporter,  New  Series,  435. 

Mence  on  Libel,  62,  75,  88,  95,  97,  99,  132,  438. 

Montford,  Simon  De,  Miracles  of,  61,  98. 

Minshai,  or  Guide  into  the  Tongues,  73. 

Maine,  Inquiry  into  the  Origin  of  Legal  Ideas,  83,  105. 

Michaelis'  Commentary  on  the  Law  of  Moses,  95. 

March  on  the  Action  of  Slander,  96,  373. 

McNally,  Criminal  Evidence,  105. 

Mills'  Logic,  125. 

Massachusetts,  Sketches  of  Judicial  History  of,  95, 

Norske  Folkes  Historic,  62. 

North  British  Review,  62. 

Nicholson,  Prefat.  ad.  Leg.  Anglo  Sax.  95. 

New  York,  Constitution  of,  344,  439. 

Parry — Lord  Campbell's  Libel  Act,  17";. 

Pitcairn's  Criminal  Trials  in  Scotland,  95. 

Petit,  Leges  Attica,  95. 

Pascal's  Letters,  98. 

Pomeroy,  Introduction  to  Municipal  Law,  96. 

Palgrave's  Rise,  &c,  of  the  English  Commonwealth,  98. 

Palgrave's  History  of  Normandy  and  of  England,  99. 

Political  Songs  of  England,  136,  137. 

Political  Ballads,  113. 

Pope's  Satires,  61. 

Pall  Mall  Gazette,  347. 

Parsons  on  Contract,  259. 

Parliamentary  History,  329. 

Percy  Anecdotes,  434. 

Price's  Points  of  Practice,  466. 

Redfield  on  Wills,  247. 

Raes'  Medical  Jurisprudence,  434. 

Rastell's  Entries,  142. 

Russell  on  Crimes,  73,  123. 


REFERRED    TO.  47 

Reeves'  History  of  the  Common  Law,  93,  98,  170. 

Rolles'  Abridgment,  98,  170,  173,  214,  321,  224,  228,  231,  233. 

Report  of  Criminal  Law  Commissioners,  482. 

Report  of  House  of  Lords  on  Libel,  72,  103,  123,  329,  346. 

Report  to  House  of  Commons  on  Publication  of  Printed  Papers,  346. 

Report  on  Leprosy,  243. 

Report  of  House  of  Lords  on  Contagious  Diseases,  244. 

Robinson's  Practice,  348. 

Reading  on  the  Statute  Law,  375. 

Reg.  Aberd.,  60. 

Reg.  Gen.  H.  T.,  612. 

Ridley's  Civil  Law,  60,  62. 

Sedgewick  on  Damages,  400. 

Somers  Lord,  on  Grand  Juries,  62. 

Saunders  on  Pleading  and  Evidence,  210,  263. 

Selwyn's  Nisi  Prius,  176,  330,  500. 

Stephens'  Ecclesiastical  Statutes,  62,  101. 

State  Trials,  91,  113,  129. 

State  Papers,  Calender  of,  62. 

Stephens  on  Pleading,  92,  98. 

Stephen's  Criminal  Law,  111,  112,  118,  121,  130,  132,  145. 

Sullivan's  Lectures,  93. 

Stiernhook  de  Jure  Vetusto  Sucomum,  &c,  95. 

Saltern,  De  Antic.  Leg.  Brit.,  95. 

Sharswood's  Blackstone's  Commentaries,  98. 

Shaw's  Digest,  414. 

Sheppard's  Action  on  the  case  for  Slander,  58,  511. 

Smith's  Leading  Cases,  299. 

Spencer,  60. 

Shakespeare,  60,  247,  434. 

Smith,  Sidney,  Elementary  Sketches  of  Moral  Philosophy,  120. 

Story  on  the  Constitution,  438,  442. 

Story  on  Contracts,  259. 

Story  on  Agency,  455. 

Story  on  Equity  Jurisprudence,  92. 

Swinburn  on  Wills,  247. 

Starkie  on  Evidence,  127,  139,  582,  617. 

Starkie  on  Slander.  92,  95,  103,  116,  117,  123,  125,  137,  138,  139,  140,  142, 
146,  149,  150,  154,  155,  158,  160,  165,  1G6,  167,  168,  171,  175,  176, 
180,  184,  185,  187,  198,  204,  205,  211,  212,  214,  215,  217,  220,  221, 
230,  233,  234,  239,  246,  258,  259,  260,  266,  290,  311,  327,  328,  329, 
330,  338,  341,  348,  365,  366,  373,  433,  464,  477,  496,  499,  511,  512, 
513,  517,  519,  527,  537,  553,  591. 

Shelley,  Memoir  of,  370. 

Solicitor's  Journal,  373. 

Statutes  of,  Arkansas,  76. 
California,  76. 
Illinois,  76. 


48  TABLE    OF    WOBKS    EEFEEEED    TO. 

Statutes  of  Iowa,  76. 

Georgia,  76. 

Maine,  76. 

Massachusetts,  549. 

New  York,  92,  206,  343.  344,  346,  356,  804,  371,  439,  440.  456, 
404.  400,  498,  499,  547,  and  see  GocU  of  Procedure. 

England,  60,  69,  95,  101,  103.  343.  340.  350.  435.  436,  440,  464. 
465,  467,  496,  500,  505,  626,  040. 

Hotchkiss'  Digest,  76. 

Prince's  Digest,  76. 

Cobb's  Digest.  70. 
Thibaut,  System  of  Pandekten  Rechts,  83. 
Taylor  on  Evidence,  024. 
Trench,  Dean,  70. 

Tremayne's  Pleas  of  the  Crown.  99. 
Tacitus  De  Mor.  Germ.,  95. 

Thomas,  History  of  Printing  in  America,  95.  32s. 
Tomlin's  Law  Dictionary,  71. 
Tindal's  History  of  England,  438. 
Trials  per  Pais,  579. 

Trials  at  Nisi  Prius,  Introduction  to  the  Law  relative  to,  60. 
Finnerty's,  74. 
David  Lee  Cliilds,  74. 
Gibbs  ».  Arthur,  373. 
Upper  Canada  Law  Journal,  X.  S.,  625. 
United  States.  Constitution 
Yoorhies'  Code,  470,  549. 
Vidian's  Entries,  58. 
Valentine's  Corporation  Manual.  95. 

Viner's  Abridgment,   59,  92,  98,  101,  13  63,  164,  105.  Hi:'.  172,  1-7. 

193,  194,  197,  201,  216,  217,  220,  22  .  .  23d.  287, 

239,  240,  242.  244.  247,  266,  268,  2;.'.  274,    . 
283,  314,  319.  :;00,  499. 

Walford  on  Parties,  498. 
Wood's  Civil  Law,  58,  104,  107,  4 
Wood's  Institutes,  58,  L04, 
Westminster  Review,  68,  ~0,  70,  245. 
Whewell,  The  Mechanical  Luc  lid,  76. 
Woodeson's  Lectures,  70. 
Whittier,  438. 

Wilkin's  Leges  Anglo-Sax.,  95. 
Wilkin's  Political  Ballads,  113. 
Wright,  England  under  the  House  of  Banover,  113. 
Willard's  Equity  Jurisprudence,  304. 
Whateley's  Logic,  219. 
Yates'  Pleadings  and  Forms,  307.  558. 


WORKS  OF  REFERENCE. 


[For  the  convenience  of  those  who  may  desire  further  information  on  the  subject 
of  Slander  and  Libel,  we  subjoin  the  following  list  of  publications,  to  which  reference 
may  be  made.] 

Treatise  on  Libel.  By  Sir  Thomas  Mallett,  Judge  of  the  Queen's  Bench, 
England.     (Referred  to  by  Finnerty  when  brought  up  for  Judgment.) 

Ax  Essay  on  the  Liberty  op  the  Press,  chiefly  as  it  respects  personal 
slander.     By  Bishop  Hayter. 

[In  Marvin's  Legal  Bibliography  a  treatise  with  a  precisely  similar  title 
is  attributed  to  John  Asgill.     I  know  not  if  it  is  the  same  work.] 

"  Another  Letter  to  Mr.  Almon  on  Matters  of  Libel." — "  The  posi- 
tion that  it  is  not  material  whether  the  libel  be  true  or  false,  or  whether 
the  person  that  made  it  be  of  good  or  ill  fame,  is  a  proposition  of  truth 
and  the  provision  of  a  sanctuary  for  weak  and  wicked  men,  who  may  be 
employed  as  ministers  or  judges." 

The  People.  Dedicated  to  Sir  Francis  Burdett,  Bart.  By  an  unlettered 
man.  Printed  for  the  Author,  and  sold  by  M.  Jones,  5  Newgate  Street, 
London.     1811. 

[This  work  professes  to  contain  an  analysis  of  Pitt's  system,  and  to 
show  the  great  danger  of  the  theory,  with  regard  to  libels.  To  trace 
that  theory  to  its  origin,  and  that  it  is  directly  contrary  to  the  re- 
formed religion  and  the  New  Testament.] 

Law  of  Libel  (On  the),  with  strictures  on  the  self-styled  Constitutional 
Society.     By  John  Hunt.     8vo.     London,  1823. 

Erskine's  Speech  in  the  case  of  the  King  v.  "Williams,  for  publishing  Paine's 
Age  of  Reason ;  with  Mr.  Kvd's  reply  and  Lord  Kenyon's  charge  to  the 
Jury. —  Trials,  vol.  xviii.,  iV".  T.  State  Library. 

The  Englishman's  Right;  or,  a  Dialogue  between  a  Barrister  at  Law  and  a 
Juryman,  concerning  the  antiquity,  use,  power,  and  duty  of  Jurors,  by 
the  Law  of  England.  Extract  in  appendix  to  trial  of  .John  Lambert  for 
libel. — Trials,  vol.  xv.,  N.  Y.  State  Library. 

Juryman's  Touchstone  (The)  ;  or,  A  full  refutation  of  Lord  Mansfield's 
opinion  in  Crown  Libels.     8vo.     London,  1784. 

A  Letter  on  Libels  and  Warrants.     (Referred  to,  1  Biographical  Anec- 
dotes, by  Almon,  p.  226.) 
4 


50  WORKS    OF   REFERENCE. 

Masset's  History  of  England.  Vol.  2.  As  to  Dowdeswell's  Bill  to  make 
juries  judges  of  the  Law  in  libel  cases. 

Speech  of  Sir  Robert  Peel,  in  vindication  of  the  House  of  Commons 
claim  to  publish  its  proceedings.     London,  1837. 

A  Letter  to  Lord  Langdale  on  the  recent  proceedings  of  the  House  of 
Commons  on  the  subject  of  privilege.  By  Thomas  Pemberton,  M.  P. 
2d  edit.     London,  1837. 

Observations  on  the  Rights  and  Duttes  of  Juries  in  trials  for  Libels, 
with  remarks  on  the  origin  and  nature  of  the  Law  of  Libels.  By  J. 
Towers.     8vo.     Dublin,  1785. 

Free  Speech.     An  oration  by  Daniel  "Webster,  A.  D.  1814. 

Lecture  on  the  Law  of  Libel.     By  James  T.  Brady,  Esq. 

An  Apology  for  the  Freedom  of  the  Press.  By  the  Rev.  Mr.  Robert 
Hall.     London,  1821. 

BOLLAN   ON    THE    RlGHT    OF   EVERT    MAN    TO    THLNK    AND     SPEAK    FREELV. 

(Referred  to  Quiney's  Massachusetts  Reports,  p.  270.) 

Of  Slander  and  Flattery.     A  sermon  by  Jeremy  Taylor. 

Erskine's  Speeches  on  subjects  connected  with  the  Liberty  of  the  Press. 

"  Discussion  of  the  Law  of  Libel  as  at  present  received,  in  which  its 
authenticity  is  examined;  with  incidental  observations  on  the  Legal 
effect  of  Precedent  and  Authority."  Pamphlet.  London,  1785.  As- 
cribed to  J.  TV".  Adair. 

Skene  on  Crimes.  25th  chapter  of  title  2 — Of  famous  Libels  and  Seditious 
Speeches. 

Tract  on  Libel.  By  Lord  Bacon.  Mentioned  in  the  memoirs  of  T.  Hollis, 
p.  169. 

[It  is  referred  to  in  a  note  to  T.  Holt  White's  edition  of  Milton's  Areo- 
pagitica,  and  the  annotator  adds:  '*  My  inquiries  after  this  posthu- 
mous publication  have  been  fruitless."'  Query.  If  the  same  tract  as 
one  entitled  "  Certain  observations  upon  a  Libel.  By  Lord  Bacon, 
A.  D.  1592,"  to  be  found  in  several  editions  of  Bacon's  works.] 

Lord  Sidmouth's  Circular  respecting  libels. 

Earl  Gray's  Speech  on  the  above  circular.     House  of  Lords,  1817. 

Tendal's  Continuation  of  Rapin's  History  of  England  as  to  Pulteney's  Bill 
to  prohibit  the  circulation  of  unlicensed  newspapers. 

Domestic  Annals  of  Scotland.     By  Chambers.     Vol.  1,  p.  126. 

Dodslet's  Annual  Register.     A.  D.  1792. 

Mr.  Stammer's  Pamphlet  on  the  case  of  Rex  >'.  D'Israeli. 

[I  have  been  unable  to  find  a  copv.  It  is  referred  to  1  Townsend's 
Modern  State  Trials.  260.] 

Bacon's  Abridgment,  tit.  Slander,  Courts  Ecclesiastical. 


WOKKS    OF    REFERENCE.  51 

Siieppard's  Abridgment,  tit.  Libel. 

Blue  Laws  of  Connecticut. 

Otto  Thesaurus.     Vols.  3,  4. 

Coote's  Ecclesiastical  Courts,  tit.  Defamation. 

Burn's  Ecclesiastical  Law,  tit.  Defamation. 

Quinct's  Massachusetts  Reports,  A.  D.  1761  to  A.  D.  1777.    See  pages 

260,  267,  270,  278,  309— Charge  as  to  law  of  libel. 

Page  245 — As  to  right  of  the  court  to  commit  for  libel. 

Page  561 — Discussion  on  the  right  of  juries  to  judge  of  law  and  fact. 
Essai  Historique  sur  la  Liberte  d'ecrere  chez  les  ancienes  et  au  rnoyen 

age,  sur  la  liberte  de  la  press,  &c,  &c.     Par  G.  Peignot. 
Encyclopedia  Britannica,  supplement ;  art.  Liberty  of  the  Press. 
Jacob's  Law  Dictionary,  titles  Justification,  Court  of  Piepowders,  Copia 

Libelli  Deliberanda,  Scandal. 
Viner's  Abridgment,  tit.  Good  Behaviour. 

McDougall's  Case,  3  Documentary  History  of  New  York,  534;  cited  10  Ab- 
bott's Practice  Reports,  170;  and  see  id.  p.  169. 
Freedom  op  Wit  and  Humor.     By  Lord  Shaftesbury.     A.  D.  1709. 
Considerations  on  the  Law  of  Libel  as  relating  to  publications  on  the 

subject  of  religion.     By  John  Search.     Ridgway,  1833. 

[This  pamphlet  is  referred  to  11  London  Law  Magazine,  444.  John 
Search  is  a  fictitious  name.] 

The  Craftsman,  No.  281,  vol.  viii.,  p.  213. 

[Contains  the  reasons  why  the  Commons  would  not  agree  to  the  clause 
which  revived  the  old  printing  act,  delivered  at  a  conference  with 
the  Lords,  1695.] 

A  Digest  of  the  Law  Concerning  Libels  containing  all  the  resolutions 
in  the  books  on  the  subject,  and  many  MS.  cases,  &c,  by  a  gentleman  of 
the  Inner  Temple.     4to.     London,  1765. 

Reasons  Against  the  Intended  Bill  for  laying  restraint  on  the  Liberty  of 
the  Press.     London,  1792. 

Essay  on  the  Liberty  of  the  Press.     Richmond,  1803. 

London  Quarterly  Review.  April,  1865.  Libel  and  freedom  of  the 
Press. 

Edinburg  Review.  Review  of  George  on  Libel.  Abuses  of  the  Press,  vol. 
22.  Review  of  Holt  on  Libel,  2d  edition,  vol.  27.  French  Law  of  Libel, 
vol.  32.     Libels  on  Christianity,  vol.  58. 

Westminster  Review.    Review  of  Mence  on  libel,  vol.  3. 

London  Law  Magazine.  Application  of  Libel,  vol.  2.  The  Law  of  Libel, 
vol.  11.  Communicating  slanderous  words  in  answer  to  inquiries,  vol. 
34.  Presumptions  of  Law  and  presumptive  evidence,  vol.  6.  The 
province  of  the  Judge  distinguished  from  the  province  of  the  jury, 
vol.  12. 


52  WORKS    OF   REFERENCE. 

Solicitor's  Journal.     The  Law  of  Libel,  vol.  8.    Libels  on  Professional 

Men,  vol.  9.     Law  of  Libel,  vol.  10. 
City  Hall  Reporter.     Slander,  p.  1G0. 
Cornhill  Magazine,  January,  18G7. 
Eclectic  Review,  March,  1867. 

Knickerbocker  Magazine.     Scandal  and  Envy,  vol.  33. 
Christian  Examiner,  vols.  16, 17. 

"  Discipline,  vol.  3. 

Western  Law  Journal,  vol.  2.     N.  S. 
American  Encyclopedia,  art.  Libel. 
American  Law  Journal.      (Hall,  Baltimore),  vol.  1.     Commonwealth  v. 

Duane,  Commonwealth  v.  Cobbett,  State  of  Maryland  v.  Irvine,  Carr  v. 

Hood,  Van  Vechten  v.  Hopkins.     Vol.  3.     The  People  v.  Frothingham, 

Libel  on  General  Hamilton.     Vol.  4.     Rex  v.  Creavy. 
American  Quarterly  Review,  vol.  5,  (A.  D.  1829),  contains  a  Review  of 

Holt's  Law  of  Libel. 
American  Lancet.     Report  of  Libel  Trial  in  New  York,  A.  D.  1831. 
Trial  of  John  Stockdale  for  a  libel  on  the  House  of  Commons,  in  the 

Court  of  King's  Bench  in  1789 — with  an  argument  in  support  of  the 

Rights  of  Juries — London,  1790. 
The  Trial  of  Theophilus  Swift  for  a  Libel  on  the  Fellows  of  the  Dublin 

University,  and  the  Trial  of  the  Rev.  Dr.  Burrows  for  a  libel  on  Theo- 
philus Swift,  published  together  with  notes  by  Theophilus  Swift. 

[The  result  of  these  trials  was  that  both  Swift  and  Burrows  found 
themselves  inmates  of  the  same  jail.  Each  for  libelling  the  other. 
See  Barrington's  Memoirs.] 

Report  of  the  Maharaj  Libel  case,  Bombay,  1862,  as  to  which  see  West- 
minster Review,  January,  1864. 

Pamphlet  Trials,  of  Joseph  T.  Buckingham  for  Libel  on  John  N.  Maffit ; 
of  David  Lee  Childs  for  Libel  on  John  Keys  ;  of  Daniel  Isaac  Eaton  for 
Libel  entitled  " Politics  for  the  People,  or  Hogs-wash;"  of  Dr.  New- 
man ;  of  Aston  Williams ;  of  Francis  S.  Beattie  ;  of  William  Hone. 

Among  the  Papyri  unearthed  from  the  ruins  of  Herculaneum  is  an  essay  on 
Freedom  of  Speech,  by  Philodemus.  It  forms  part  of  a  work  entitled 
"  Philodemi  Uepi  '  PnropiKfjs,  ex  Herculanensi  Papyro  restitutuit,  LatinC- 
vertit,  et  Dissertationibus  auxit.     [E.  Gros,  Parisiis  :  1840.    Publisher.] 

Observations  upon  the  Mode  of  prosecuting  for  libel  according  to  the 
laws  of  England.     By  Borthwick,  London,  1830. 

[This  is  not  the  work  referred  to  in  the  following  pages  as  Borthwick 
on  Libel.] 

Memorials  of  London,  and  London  Life  in  the  13th,  14th  and  15th  Cen- 
turies, refers  to  Conviction  for  making  a  false  accusation  and  a  protec- 
tion from  the  king  alleged  (12  Richard  II,  A.  D.  1388).  Punishment  of 
the  Pillory  and  Whetstone  for  circulating  lies  (48  Edward  III,  A.  D. 


WORKS    OF    REFERENCE.  53 

1371).  Punishment  of  the  Thewe  inflicted  upon  a  common  scold  (49 
Edward  III,  A.  D.  1373.)  Punishment  for  practicing  the  art  of  magic, 
and  for  defamation  (3  Richard  III,  A.  D.  1348).  Punishment  of  im- 
prisonment for  reviling  the  Mayor  (6  Richard  II,  A.  D.  1352). 

Considerations  on  the  respective  rights  of  judge  and  jury,  particularly 
upon  trials  for  libels  occasioned  by  an  expected  motion  of  the  Hon.  C. 
J.  Fox.     London,  2d  ed.,  1791.     John  Bowles. 

Two  Letters  to  the  Hon.  C.  J.  Fox,  occasioned  by  his  late  motion  in  the 
House  of  Commons,  respecting  libels  and  suggesting  the  alarming  con- 
sequences likely  to  ensue,  if  the  bill  now  before  the  legislature  should 
pass  into  a  law.     By  John  Bowles.     London,  1792. 

Dialogue  between  a  country  farmer  and  a  juryman,  on  the  subject  of  Libels. 
London,  1770. 

Parliamentary  Debates  on  the  statute  (32  Geo.  Ill,  c.  60)  for  removing 
doubts  respecting  the  functions  of  juries  in  cases  of  libel.  London, 
1792. 

The  Whole  Proceedings  on  the  trial,  &c,  of  Thomas  Paine  for  a  libel 
entitled  "  The  Rights  of  Man."     London,  1792. 

Sandford's  Penal  Codes  of  Europe,  pp.  70,  100,  105,  10G,  116.  Prussian 
Code,  ch.  13,  part  II.  Verletzungen  der  Ehre,  translated  of  Slander  and 
Libel. 

A  Case  of  Libel.     By  Thomas  Moore. 

Collard  Royer.     Discussion  upon  the  Law  of  the  Press. 

Haydn's  Dictionary  of  Dates,  Title,  Trials. 

Report  of  the  Trial  of  Dr.  Samuel  Thompson,  founder  of  the  Thornp- 
sonian  practice  for  libel  in  warning  the  public  against  the  imposition  of 
Paine  D.  Badger,  as  a  Thompsonian  Physician.     Boston. 

Cooley  on  Constitutional  Construction.  Chapter  xii.  "Liberty  of 
Speech  and  of  the  Press." 

The  Law  relating  to  Literature  and  Art,  the  law  relating  to  Newspapers, 
and  the  law  of  Libel.     By  John  Shortt,  LL.B.     London,  1871. 

The  Medical  Practitioner's  Legal  Guide.  London,  1870.  [Chapter  v, 
p.  43.     Character.     Defamation.] 


PAET   I. 


THE    LAW 


SLANDER   AND   LIBEL. 


SLANDER  AND  LIBEL. 

CHAPTER  I. 

INTRODUCTORY. 

Language  as  a  means  of  effecting  injury — Slander — Libel 
— Defamation — Eedress — The  Laiv  of  Libel — Object 
in  view  —  Division  of  subject  —  Attempts  to  define 
Libel. 

§  1.  Among  the  means  which  one  individual  may  em- 
ploy to  affect  another  or  to  affect  society  in  general  are 
sounds  and  signs.1  Language,  in  so  far  as  it  is  the  medium 
for  communicating  or  exciting  ideas,  consists  of  a  system 
of  sounds  and  signs,  and  is  the  chief  among  the  sounds 
and  signs  which  affect  individuals  or  society  in  general.2 


1  As  ringing  bells,  firing  gnns,  beating  drums,  clapping  hands,  hooting,  (fee,  see 
Martin  v.  Nutkin,  2  P.  Wms.  266  ;  Soltan  v.  De  Held,  2  Sim.  N.  S.  133 ;  16  Jur.  326 ; 
First  Bap.  Ch.  v.  Sch.  R.  R.  Co.  5  Barb.  79 ;  Tarleton  v.  McGawley,  Peake's  Cas.  205 ; 
Moshier  v.  Utica  &  Sch.  R.  R.  Co.,  8  Barb.  427  ;  Cole  v.  Fisher,  11  Mass.  137  ;  Loubz 
v.  Hafner,  1  Dev.  1 85 ;  Gregory  v.  Brunswick,  6  M.  and  G.  953 ;  Trustees,  <fec,  v. 
Utica,  &c,  6  Barb.  313 ;  Davidson  v.  Isham,  1  Stock.  186.  Noise  of  pupils  in  schools, 
Com.  Dig.  Act.  on  case,  c.  294 ;  noise  in  manufacturing  steam  boilers,  Fish  v.  Dodge, 
4  Denio,  311 ;  barking  dogs,  Brill  v.  Flagler,  23  Wend.  354.  In  Lansing  v.  Smith,  8 
Cow.  146,  Sutherland,  J.,  compares  the  action  for  a  nuisance  to  an  action  of  slander 
for  words  not  actionable  in  themselves. 

i  There  is  nothing  in  nature  but  may  be  an  instrument  of  mischief  (L'd  Chief  J. 
Pratt,  in  Chapman  v.  Pickersgill,  2  Wils.  145). 

"  A  very  great  part  of  the  mischiefs  which  vex  the  world  arise  from  words." 
(Burke  in  a  letter  to  his  son.)  "  Among  the  abounding  iniquities  of  this  age,  the  ini- 
2 


58  EFFECT    OF   LANGUAGE.  [Cll.  I. 

Language  expressed  in  sound  is  oral  language  or  speech. 
Language  expressed  in  signs  is  written  language,  or  writ- 


quity  of  the  tongue,  that  little  member,  set  on  fire  by  hell,  is  not  least.  And  among 
the  evils  of  the  tongue  is  there  any  more  pernicious  and  deadly,  and  yet  more  com- 
mon and  epidemical  than  backbiting  and  slander  ?  And  hence  it  is,  I  have  been  en- 
couraged to  engage  in  this  work,  -which  is  nothing  else  but  a  naked  and  methodical 
collection  of  the  remedies  prescribed  by  the  law  against  this  malady."  (Preface  to 
Sheppard  on  Slander.) 

Words  are  contained  under  the  general  expression  of  a  human  act,  as  also  signs 
which  have  the  same  effect  with  word3.  (Wood's  Civil  Law,  28.)  A  fraudulent  rep- 
resentation is  in  effect  a  wrongful  action  (Sharp  v.  Mayor  of  X.  Y.  25  How.  Pra. 
R.  396)  scribere  est  agere.  (The  People  v.  Rathbun,  21  Wend.  509,  540.)  On  the  trial 
of  Algernon  Sidney,  the  prisoner  inquired,  And  is  writing  an  act  ?  to  which  Lord 
Jefferies  replied,  Yes  it  is  agere. 

Language  is  not  the  only  mode  by  which  reputation  may  be  injured.  "  Scandal 
sifnifies  a  report  or  rumor  or  an  action  whereby  one  is  affronted  in  public."  (Jacob's 
Law  Diet.)  Thus,  in  Brewer  v.  Day,  ]  1  M.  and  W  625,  one  cause  of  special  damage 
was,  that  defendants,  by  causing  plaintiffs  goods  to  be  seized  on  an  unfounded  claim 
for  debt,  occasioned  his  customers  to  think  him  insolvent ;  and  in  trespass  for  break- 
ing and  entering  plaintiff's  dwelling,  upon  false  charge  of  having  stolen  property  con- 
cealed therein,  per  quod  she  was  injured  in  her  credit,  it  was  held  that  the  jury  might 
give  damages  as  aggravated  by  the  false  charge  (Bracegirdle  v.  Orford,  2  Maule  and 
Selw.  77.  See  Jeffries  v.  Duncombe,  1 1  East,  226 ;  Spall  v.  Massey,  2  Stark.  Cas. 
559.)  As  to  injury  to  reputation  by  act,  see  Beaumont  v.  Reeve,  8  AdoL  and  Ell.  483  ; 
and  1  Siderfin,  375,  where  one  Cooper  brought  an  action  upon  the  case  against 
TVitham  and  his  wife,  for  that  the  wife  maliciously  intending  to  marry  him,  did  often 
affirm  that  she  was  sole  and  unmarried,  and  importuned  et  strenue  inquisivit  the 
plaintiff  to  marry  her ;  to  which  affirmation  he  gave  credit,  and  married  ber.  when 
in  ado  she  was  wife  of  the  defendant ;  so  that  the  plaintiff  was  much  troubled  in 
mind,  and  put  to  great  charges,  and  damnified  in  his  reputation.  He  had  a  verdict, 
but  no  judgment;  for  by  .Twisden,  J.,  the  action  lies  not,  because  the  thing  here  done 
is  felony;  no  more  than  if  a  servant  be  killed,  the  master  cannot  have  an  action  per 
quod  servitium  amisit,  quod  curia  concessit ;  see  also  Vidian's  Entries,  where  is  a  form 
of  declaration  for  saying :  Regard  brothers  went  to  a  house  which  was  a  brothel  and 
ought  to  be  torn  down,  special  damage  that  the  house  was  torn  down.  As  to  defa- 
mation by  deed,  see  Of  Libels :  An  Institute  of  the  Laws  of  England,  by  Thomas 
Wood,  LL.  D.,  1720.  Where  a  banker  having  sufficient  funds  in  hand  belonging  to 
his  customer,  dishonors  that  customer's  check,  he  is  liable  to  an  action  for  damages. 
(Robinson  v.  Marchant,  1  Q.  B.  918;  and  see  Marzetti  v.  Williams,  1  B.  <t  A.  415.) 
And  where  a  notary  protested  a  note  for  non-payment,  without  having  previously 
presented  the  note  to  and  demanded  payment  of  the  maker,  he  was  held  liable  in  an 
action  for  the  damage  thereby  occasioned  to  the  reputation  of  the  maker  (MS.) 

Language,  however  licentious  and  abusive,  is  not  a  trespass  (Adams  v.  Rivers,  11 
Barb.  397),  but  may  constitute  an  imprisonment  (Homer  v.  Battyn,  Puller's  X.  P.  62; 
Pike  v.  Hanson,  9  X.  H.  Rep.  491);  and  cruelt}-  (Durant  v.  Durant,  1  Hagg.  Ecc.  R. 
769;  Lockwood  v.  Lockwood,  2  Curteis'  Ecc.  R.  2S1,  cited  and  approved  Bihin  ;•.  Bi- 
hin,  17  Abb.  Pr.  Rep.  26).     A  recognizance  to  keep  the  peace  is  not  forfeited  by  re- 


§§    2,  3.]  EFFECT    OF   LANGUAGE.  59 

ing  and  effigy.  By  writing *  is  intended  to  be  understood, 
every  means  of  symbolizing  language  by  alphabetic  char- 
acters, with  every  kind  of  implement,  as  pen,  pencil, 
graver,  type ;  with  every  kind  of  pigment,  as  ink,  lead, 
chalk;  on  any  kind  of  substance,  as  paper,  parchment, 
linen,  wood,  copper,  steel,  stone,  or  on  any  wall  or  post.2 
And  by  effigy  being  intended  to  be  understood  every 
other  means  of  communicating  or  exciting  ideas  other  than 
by  speech  or  by  writing.  Effigy,  therefore,  includes  pic- 
tures, statues,  gestures. 

§  2.  The  effect  of  language  may  be  beneficial  or  injuri- 
ous. If  injurious,  the  injury  may  amount  to  a  wrong,  en- 
titling the  party  wronged  to  redress  by  law.  The  desig- 
nations of  the  wrong  and  of  its  remedy  and  of  the  wrong 
doer  differ  according  to  the  means  employed  to  effect  the 
wrong. 

§  3.  One  may  be  so  injuriously  affected  by  speech  as 
to  be  what  is  termed  slandered ;  and,  in  that  event,  the 
speech  so  affecting  him  is  called  slander 3  or  a  slander,  and 
the  speaker  is  denominated  a  slanderer. 


proachful  words  (4  Bl.  Com.  oh.  xviii).  As  to  speech  being  the  foundation  of  a 
criminal  prosecution,  see  2  Bishop  on  Crim.  Law,  §  813. 

If  a  man  menaces  my  tenants  at  will,  of  life  and  member,  per  quod  they  depart 
from  their  tenures,  an  action  upon  the  case  will  lie  against  him,  but  the  threatening 
without  their  departure  is  no  cause  of  action.  (9  II.  7,  8,  Vin.  Ab.  Actions  Case,  N.  c. 
21.) 

Action  lies  for  threatening  workmen  to  maim  and  prosecute  them,  whereby  the 
master  lost  the  selling  of  his  goods,  the  men  not  daring  to  go  on  with  their  work. 
(Garret  v.  Taylor,  Cro.  J.  567  pi.  4,  a.  d.  1621 ;  Skinner  v.  Kitch,  Law  Rep.  2  Q.  B. 
393;  see,  however,  Ashley  v.  Harrison,  1  Esp.  48  and  post,  §  201.) 

1  Writing  includes  printing  (Sannderson  v.  Jackson,  2  Bos.  and  Pul.  238;  Hen 
shaw  v.  Foster,  Pick.  318)  and  marks  with  a  lead  pencil  (Geary  v.  Physic,  5  B.  and 
C.  238 ;  Classon  v.  Bailey,  14  Johns.  484).     See  Bouvier's  Law  Diet.  tit.  Effigy. 

2  Austin  v.  Culpepper,  Skin.  123,  Show.  314. 

3  Slander  is  defaming  a  man  in  his  reputation  by  speaking  or  writing  words 
which  affect  his  life,  office  or  trade;  or  which  tend  to  his  loss  of  preferment  in  mar 


60  LIBEL.  [Ch.  I. 

§  4.  One  may  be  so  injuriously  affected  by  writing  or 
effigy  as  to  be  what  is  termed  libeled ;  and,  in  that  event, 
the  writing  or  effigy  so  affecting  him  is  called  libel  or  a 
libel,  and  he  who  puts  forth  such  writing  or  effigy  (the 
publisher  or  venter)  is  denominated  a  libeler,1  "  one  whose 


riage  or  service,  or  to  his  disinheritance,  or  which  occasion  any  particular  damage. 
(Introduction  to  the  Law  relative  to  trials  at  Nisi  Prius.  By  a  Learned  Judge  [Lord 
Bathurst].     Vol.  I,  p.  3.) 

Slander  is  the  imputation:  1.  Of  some  temporal  offence  for  which  the  party 
might  be  indicted  and  punished  in  the  temporal  courts.  2.  Of  an  existing  contagious 
disorder,  tending  to  exclude  the  party  from  society.  3.  An  unfitness  to  perform  an 
office  or  employment  of  profit,  or  want  of  integrity  in  an  office  of  honor.  4.  Words 
prejudicing  a  person  in  his  lucrative — possession  [profession],  or  trade.  5.  Any 
untrue  words  occasioning  actual  damage.     (1  Hilliard  on  Torts,  ch.  vii.  §  3.) 

Slander  is  defined  to  be  "  the  publishing  of  words  in  writing,  or  by  speaking,  by 
reason  of  which  the  person  to  whom  they  relate  becomes  liable  to  suffer  some  cor- 
poreal punishment,  or  to  sustain  some  damage."     (Bac.  Abr.) 

"  Slander  being  an  unwritten  or  unprinted  libel,  and  libel  a  written  or  printed 
slander."     (1  Hilliard  on  Torts,  ch.  vii.  §  2.) 

The  word  slander,  as  used  in  former  times,  seems  to  have  had  a  meaning  different 
to  that  in  which  it  is  now  used.  Thus :  "  But  because  some  are  wrongfully  slandered 
[accused),  King  Henry  I  ordained  that  none  should  be  arrested  or  imprisoned  for  a 
slander  (accusation)  of  mortal  offence,  before  he  was  thereof  indicted  by  the  oaths  of 
honest  men  before  those  who  had  authority  to  take  such  indictments."  (Mirrour  of 
Justices,  ch.  xi,  §  22.)  "  In  this  same  year  the  mysseles  (lepers)  thorow-oute  Cristen- 
dom  were  slaundered  that  they  had  made  covenant  with  Sarasenes  for  to  poison  all 
Christen  men."     (Capgrave's  Chronicle  of  England,  p.  186.) 

In  a  document  addressed  by  the  Dean  and  Chapter  of  Aberdeen  to  Bishop  Gor- 
don, dated  January  5,  1558,  is  the  following: 

"  Imprimis,  that  my  Lord  Bishop  cause  the  kirkmen  within  his  diocie  to  reform 
themselves  in  all  their  slanderous  manner  of  living,  and  to  remove  their  open  concu- 
bines, as  well  great  as  small.  Secundo,  that  his  Lordship  will  be  so  good  as  to  show 
edificative  example  —  in  special  in  removing  and  discharging  himself  of  the  company 
of  the  gentlewoman  by  whom  he  is  greatly  slandered  ;  without  the  which  be  done,  di- 
verse that  are  partners  say  they  cannot  accept  counsel  and  correction  of  him  which 
will  not  correct  himself,"  &c,  &c. — Reg.  Aberd.,  lxi. 

If  any  slanderously  charge  another  with  any  false  crime  (Ridley's  Civil  Law,  31) ; 
and  in  the  Statute,  3  Edw.  I,  ch.  xxxiv,  none  are|to  publish  false  news  whereby  slander 
may  grow  betweeen  the  king  and  his  people. 

Mis-say,  to  slander,  to  speak  ill.     (Spencer.) 
"  I  would  not,     *     * 

Have  you  so  slander  any  moment's  leisure 
As  to  give  words  or  talk  with  the  Lord  Hamlet."    (Shakespeare.) 

1  "  Libeler — he  who  shall,  to  the  infamy  of  another,  write,  compose,  or  publish  a 
book,  song,  or  fable,  or  maliciously  procure  any  of  those  acts  to  be  done,  is  guilty  of 
a  lib  J."    (Just.  Inst.) 


§§    5-7.]  SLANDER.  61 

heart  is  more  dark  and  base  than  that  of  an  assassin,  or 
than  his  who  commits  a  midnight  arson."1 

§  5.  So,  too,  formerly  in  England,  one  might  "be  so 
injuriously  affected  by  language,  whether  in  the  form  of 
speech,  writing,  or  effigy,  as  to  be  what  was  termed 
defamed  ;2  in  which  event  the  lano-uasfe  so  affecting  him 
was  called  defamation,  and  he  froni  whom  the  lano-uao-e 

7  DO 

proceeded  was  denominated  a  defamer. 

§  6.  Again,  by  means  of  language  may  be  effected  a 
wrong,  termed  "a  malicious  prosecution,"  as  also  the 
wrong,  termed  "  slander  of  title."  Neither  to  the  authors 
of  these  wrongs  nor  to  the  parties  affected  has  any  descrip- 
tive appellation  been  assigned. 

§  7.  Besides  slander,  libel,  defamation,  malicious  pros- 
ecution and  slander  of  title,  language  is  the  means  by 


"  The  distinction  between  the  satirist  and  the  libeler  is,  that  the  one  speaks  of 
the  species,  the  other  of  the  individual ;  the  one  holds  the  glass  to  thousands  in  their 
closets,  that  they  may  contemplate  the  deformity,  and  thereby  endeavor  to  reduce  it, 
and  thus  by  private  mortification  avoid  public  shame.  Thus  the  satirist  privately 
corrects  the  fault,  like  a  parent,  while  the  libeler  mangles  the  individual  like  an  exe- 
cutioner."    (Joseph  Andrews,  vol.  II,  p.  5.) 

"  And  indeed  there  is  not  in  the  world  a  greater  error  than  that  which  fools  are 
apt  to  fall  into,  and  knaves  with  good  reason,  to  encourage,  the  mistaking  a  satirist  for 
a  libeler."     (Pope,  Anon.  Satires  and  Epistles — Advertisement.) 

"  The  early  English  satirists  were  mighty  in  their  vocation  against  the  lawyers, 
the  regular  and  secular  clergy,  and  the  more  eminent  professors.  The  political 
ballad-mongers  aimed  higher.  They  stoutly  supported  Simon  de  Montfort  against 
Henry  the  Third.  This  support  was  probably  the  occasion  for  the  statute  of  12*75, 
'  against  slanderous  reports  or  tales  to  cause  discord  betwixt  king  and  people.' " 
(See  The  Barons'  War,  <fcc,  by  W.  H.  Blaauw,  M.  A. ;  The  Miracles  of  Simon  de 
Montfort,  Camden  Soc.  Pub.) 

A  Barrator  is  a  mover  of  suits  and  quarrels  in  courts  *****  by 
spreading  false  rumors  and  reports  to  raise  discord  among  neighbors.  (1  Coke's  Inst. 
368.)     Lampooner,  see  3  Lev.  248. 

1  Oswald's  Case,  1  Dall.  329. 

5  Defamed  seems  formerly  to  have  been  used  in  the  sense  of  charged,  thus  in  the 
forms  of  indictment  referred  to  in  "  The  Mirrour  of  Justices,"  we  find  it  so  used ;  as 


62  SLANDER.  [Ch.  I. 

which  may  be  effected,  at  least  in  England,  the  offences 
called  treason,1  heresy,  sedition,  blasphemy,  profanity, 
scandalum  magnatum,  calumny,  scolding,  brawling,  men- 
aces, deceit,  perjury,  and  many  more.2 

§  8.  Slander  is  a  private  wrong  or  tort,  cognizable  by 
the  common  law,  the  remedy  for  which  is  a  civil  action 
formerly  known  as  an  "  action  on  the  case  for  words,"  and 
now  as  an  action  or  the  action  of  or  for  slander.3 


thus:  "  I  say.  Sebounre  there  is  defamed  by  good  people  of  the  sin  of  heresy."  &c. 
and  in  Lord  Soraers'  Tract  on  Grand  Juries,  "  the  constitution  intrusts  such  inquisi- 
tions in  the  hands  of  persons  of  understanding  *  *  *  that  might  suffer  no  man 
to  be  falsely  accused  or  defamed."  "  Thieves  openly  defamed  and  known."  (4  Bl. 
Com.  ch.  xxii.)  "There  is  a  fame  against  Mr.  Spencer  for  not  burying  Edward 
Merrick  as  a  Christian  ought  to  be."  (Calendar  of  State  Papers,  Domestic  Series,  of 
the  reign  of  Charles  I,  1633-1634.     Edited  by  John  Bruce.) 

"To  diffame  is,  as  Bartol  saith,  to  utter  reproachful  speeches  of  another  with  an 
intent  to  raise  up  an  ill  fame  of  him  and  therefore  himself  expresseth  the  act  itself  in 
these  words:  Diffamare  est  in  mala  fama ponere.  Albeit  diffamations  properly  con- 
sist iu  words,  yet  may  they  also  be  done  by  WTiting,  as  by  diffamatory  libels,  and 
also  by  deeds  as  by  signs  and  gestures  of  reproach,  for  these  no  less  show  the  mali- 
cious mind  of  the  diffamer  than  words  do."     (Ridley's  Civil  Law,  339.) 

1  In  the  United  States  there  must  be  some  overt  act  to  constitute  the  act  of  treason. 
(Bouvier's  Law  Diet.  tit.  Treason.) 

8  Scolding  often  repeated  to  the  disturbance  of  the  neighborhood  makes  it  a 
nuisance,  always  punishable  at  the  leet  and  therefore  indictable.  (The  Queen  v. 
Foxby,  6  Mod.  145.)  As  to  Brawling,  see  Stephen's  Ecclesiastical  Statutes,  p.  336, 
and  copious  notes ;  and  see  Jacob's  Law  Diet.  tit.  CuckinstooL  In  Denmark  there 
was  a  species  of  libel  called  Bersoglisvisur  or  free-speaking  song.  "When  King  Mag- 
nus (say  about  A.  D.  1040)  gave  dissatisfaction  to  his  subjects,  a  meeting  was  held  at 
which  lots  were  drawn  as  to  which  one  of  those  assembled  should  address  one  of 
these  songs  to  the  King.  See  Det  Norske  Folkes  Historie,  3  vols.,  Christiania, 
1852-5;  also  Den  Danske  Erobring  of  England  og  Norrnandict,  Copenhagen,  1863, 
and  North  British  Review,  Nov.,  1863. 

8  Slander  is  not  like  libel,  an  indictable  offence.  (Bailey  v.  Dean,  5  Barb.  297.) 
Nor  is  a  single  precedent  of  any  criminal  proceeding  for  unwritten  imputations  upon 
the  characters  of  individuals  to  be  found,  except  in  cases  of  high  treason,  *  * 
and  it  must  have  been  as  constituting  rather  an  offence  against  the  government,  than 
an  injury  to  the  individual,  and  being  therefore  seditious  that  words  reflecting  on  a 
magistrate  in  the  immediate  execution  of  his  office  were  for  the  first  time  in  the  reign 
of  Queen  Anne  held  to  be  indictable.  (Reg.  v.  Langiey,  2  Ld.  Raym.  1060;  Holt  R. 
654.)  But  I  am  not  aware  that  Mr.  Starkie  has  adverted  to  this  case,  or  to  the 
doctrine  which  is  laid  down  in  it.     (1  Mence  on  Libel,  90.) 


§§    9-11.]  DEFAMATION.  63 

§  9.  Libel  is  both  a  public  wrong  or  crime  aud  a  pri- 
vate wrong  or  tort,  cognizable  by  the  common  law.  The 
remedy  for  the  public  wrong  is  by  indictment  or  criminal 
information.  The  remedy  for  the  private  wrong  is  a  civil 
action,  now  known  as  an  action  or  the  action  of  or  for  libel. 

§  10.  Defamation  was  an  ecclesiastical  offence,  cogniz- 
able only  in  the  ecclesiastical  courts,  by  a  proceeding  in 
such  courts.1 

§  11.  The  redress  sought  in  the  actions  of  slander  and 
libel  is  a  pecuniary  compensation  called  damages  for  the 
injury  sustained  by  the  party  complaining,  to  be  recovered 
against  the  party  complained  against,  and  is  intended 
solely  for  the  benefit  of  the  complainant  f  on  the  other 
hand,  the  proceeding  in  the  ecclesiastical  court  was  in 
theory  at  least,  one  solely  for  the  benefit  of  the  party 
complained  against.  It  was  to  awaken  him  to  a  sense  of 
the  sin  he  had  committed,  and  cause  him  to  do  penance 
therefor  pro  salute  animce.  In  a  proceeding  for  defama- 
tion no  damages  were  nor  could  be  awarded  to  the  party 
defamed.  The  defamer  might  be  censured,  compelled  to 
recant  the  defamation,  to  perform  penance  and  pay  costs, 
and  for  disobedience  to  the  court's  decree  be  excommuni- 
cated.    Beyond  this  the  ecclesiastical  court  had  no  power.3 


1  Suits  in  ecclesiastical  courts  for  defamation  were  abolished  by  statutes  18  &  19 
Vict.  ch.  xli. 

2  "Action  for  slander  is  to  recover  damages  for  words  spoken  of  a  person  who  is 
thereby  injured  in  his  reputation,  and  for  words  spoken  of  a  person  which  affect  his 
life,  office,  profession,  or  trade,  or  which  tend  to  his  loss,  or  occasion  any  particular 
or  special  damage  to  him."     (Onslow  v.  Home,  3  Wilson,  177.) 

3  The  ecclesiastical  law  is  part  of  the  English  common  law.  (Reg.  v.  Millis,  10  CI 
and  F.  534,  671;  and  see  Catterallv.  Catterall,  1  Robertson,  580;  Bisliop  on  Marriage 
and  Divorce,  §  9.)  But  has  no  status  in  the  State  of  New  York.  (Young  v.  Ransom, 
31  Barb.  49,  60.) 

The  power  of  the  ecclesiastical  court  is  the  infliction  of  penance  pro  salute  anhnoz 
and  awarding  costs,  but  not  damages.     (4  Co.  20,  2  Inst.  492.)    The  sentence  of  an 


64  LAW   OF   LIBEL.  [Ch.  L 

§  12.  The  law  applicable  to  the  wrongs  here  termed 
slander  and  libel  is  sometimes  designated  the  law  of  libel ; 
sometimes  the  law  of  defamation  ;  and  sometimes  the  law 
of  slander  and  libel.  For  no  better  reason  than  that  it  is 
the  one  most  in  use  we  shall  adopt  the  term  law  of  libel. 

§  13.  The  term  law  of  libel,  as  generally  understood, 
comprises  the  law  as  applicable  to  nearly  all  the  wrongs  of 
which  may  be  effected  by  means  of  language.  Our  pur- 
pose, however,  is  not  to  consider  the  whole  of  the  law  of 
libel  so  understood,  but  so  much  of  it  only  as  applies  to 
slander  and  to  libel  as  a  private  wrong. 

§  14.  As  it  is  sometimes  only  that  words  which  affect 
another  amount  to  a  wrong,  we  propose  to  ascertain,  if  we 
can,  what  are  the  rules  by  which  to  test  in  any  particular 
instance  of  words  affecting  another,  whether  they  do  or  do 
not  constitute  a  wrong,  what  kind  of  wrong,  and  what  is 
its  appropriate  remedy.  In  the  execution  of  this  purpose 
we  desire  not  merely  to  collect,  epitomize  and  classify 
under  appropriate  titles  the  reported  adjudications,  but  to 
probe  the  subject  to  its  core  and  unfold  the  principles 
which  it  involves ;  to  show  not  only  what  has  been  de- 
cided, but  the  principles  of  those  decisions :  to  lay  down, 
if  we  can,  such  rules  as  will  enable  one  under  any  given 
state  of  circumstances  to  determine  when  a  wrong,  as 
slander  or  libel,  has  occurred,  when  a  remedy  may  prop- 
erly be  sought  and  how  it  may  be  pursued  and  obtained. 


ecclesiastical  court  in  a  proceeding  for  defamation  has  its  counterpart  in  the  Scotch 
Law  under  the  name  of  Palinode. 

As  to  suits  in  spiritual  or  eccelesiastical  courts  they  are  for  the  reformation  of 
manners  or  for  punishing  of  heresy;  defamation,  laying  violent  hands  on  a  clerk  and 
the  like.  *  *  *  Thiugs  that  properly  belong  to  these  jurisdictions  are  matri- 
monial and  testamentary  and  defamatory  words  for  which  no  actioD  lies  at  law,  as 
for  calling  one  adulterer,  fornicator,  usurer,  or  the  like.  (Jacob's  Law  Diet.,  tit. 
Courts  Ecclesiastical.)  The  courts  of  Piepowder  had  jurisdiction  of  certain  actions 
for  slander.     (Jacob's  Law  Diet.,  tit.  Court  of  Piepowders.) 


§    15.]  DIFFICULTIES.  65 

To  accomplish  this  aim  we  shall  advert  to  some  elementary 
principles,  the  relevancy  of  which  may  not  at  once  be  ap- 
parent, but  the  reason  for  which  will  be  observed  as  we 
proceed,  and  without  a  reference  to  which  we  should  in 
vain  attempt  to  make  ourselves  or  our  subject  understood. 

§  15.  A  thorough  investigation  into  elementary  prin- 
ciples seems  peculiarly  necessaiy  in  treating  on  the  law  of 
libel,  because  it  is  a  branch  of  the  law  in  which,  perhaps, 
more  than  any  other,  principles  have,  from  various  causes, 
been  most  subject  to  perversion  by  undue  influences,  have 
been  less  scientifically  treated  and  more  superficially  con- 
sidered. The  law  of  libel  has  been  denounced  as  vague, 
fluctuating  and  incomprehensible.  Of  the  decisions  on 
the  subject  many  are  conflicting,  more  are  scarcely  recon- 
cilable, and  the  reasoning  in  support  of  all  is,  with  very 
few  exceptions,  more  or  less  weak,  obscure,  and  unsatisfac- 
tory. It  has  almost  been  claimed  or  conceded  that  there 
is  something  so  subtle  in  the  principles  of  the  law  of  libel 
as  to  elude  detection,  and  the  law  of  libel  has  come  to  be 
regarded  as  a  parasitical  growth  on  the  main  body  of  the 
law,  presenting  features  so  exceptional  as  to  render  inap- 
plicable those  general  principles  which  govern  other 
branches  of  legal  science.1  It  will  be  our  endeavor  to 
show  that  properly  understood  there  is  nothing  excep- 
tional in  the  wrongs  called  slander  and  libel,  nor  in  the 
legal  principles  applicable  to  these  wrongs,  that  these 
wrongs  are  governed  by  the  same  principles  which  apply 
to  all  other  wrongs,  and  that  there  is  nothing  in  the  law 
of  libel  itself  which  should  render  it  less  easy  to  compre- 
hend than  any  other  division  of  jurisprudence. 


1  A  noted  peculiarity  of  the  law  of  libel  is  its  vagueness  and  uncertainty. 
(Encyc.  Brit.,  voce  Libel.)  Holt,  writing  in  1816,  says:  "It  is  indeed  in  the  very 
nature  of  the  subject  (The  Law  of  Libel)  that  it  is  extremely  difficult  to  clear  it  of 
those  popular  conceits  and  of  that  vagueness  of  generality  which  adhere  to  it  as  a 
question  of  political  discussion.     (Holt  on  Libel,  Preface.) 


66  DIFFICULTIES.  [Ch.  I. 

§  16.  While  profoundly  sensible  of  the  difficulty  prop- 
erly to  execute  this,  our  self-imposed  task,  and  of  our 
comparative  inability  to  do  justice  to  the  subject,  we 
nevertheless  natter  ourselves  that  we  shall  be  able  to  lay 
before  our  readers  a  more  systematic  outline  of  the  prin- 
ciples of  the  law  of  libel  than  any  which  has  hitherto  been 
offered  or  attempted.1 

§  17.  Chief  among  the  difficulties  to  be  encountered  is 
the  combating  many  of  the  existing  theories  and  ideas  on 
the  subject,  most  of  them  coming  down  to  us  with  the 
prestige  of  high  authority,  hallowed  by  time  and  all  of 
them  received  for  law.  We  esteem  it  an  error  and  a  mis- 
fortune that  among  text  writers  on  legal  subjects  there 
has  been  such  a  reverence  for  precedent,  such  an  unques- 
tioned following  the  one  of  the  other,2  so  little  attempt  at 
enlarged  and  connected  views  of  their  subjects  in  their 
principles  untrammeled  by  precedent,  rendering  text 
books  collections  of  materials  for  essays  rather  than  essays. 
For  ourselves,  we  brave  being  deemed  presumptuous,  in 
the  hope  that  we  may  be  useful,  and  where,  after  the 
many  years  of  patient  reflection  we  have  bestowed  upon 
our  subject,  we  have  arrived  at  any  conclusion  which 
conflicts  with  existing  ideas  or  decisions,  we  shall  be  deter- 


1  "Though  I  could  not  be  ignorant  either  of  the  difficulty  of  the  matter  which  he 
that  taketh  in  hand  shall  soon  find,  or  much  less  of  my  own  inability,  which  I  had 
continual  sense  and  feeling  of,  yet  because  I  had  more  means  of  absolution  than  the 
younger  sort,  and  more  leisure  than  the  greater  sort,  I  did  think  it  not  impossible  to 
work  some  profitable  effect,  the  rather  because  where  aa  inferior  wit  is  bent  aud  con- 
versant upon  one  subject,  he  shall  many  times,  with  patience  and  meditation,  dis- 
solve and  undo  many  knots,  which  a  greater  wit,  distracted  with  many  matters, 
would  rather  cut  in  two  than  unknit ;  and  at  the  least,  if  my  invention  or  judgment 
be  too  barren  or  too  weak,  yet,  by  the  benefit  of  other  arts,  I  did  hope  to  dispose  or 
digest  the  authorities  and  opinions  *  *  .in  such  order  and  method,  as  they  should 
take  light  one  from  another,  though  they  took  no  light  from  me."  (Bacon's  Introduc- 
tion to  his  Reading  on  the  Statute  of  Uses.) 

2  Making  new  books,  as  apothecaries  make  new  mixtures  by  pouring  only  out  of 
one  vessel  into  another.     Burton,  repeated  by  Sterne. 


§    18.]  DIVISION    OF   SUBJECT.  67 

red  neither  by  the  antiquity  of  the  precedent,  nor  the  high 
position  of  its  author,  nor  its  indorsers,  from  expressing 
our  dissent.  Besides  a  general  and  connected  view  of  the 
subject,  we  shall  study  to  present  a  faithful  record  of  all 
the  adjudged  decisions  and  dicta,  and  as  we  really  have 
no  pet  theory  to  maintain,  and  are  influenced  solely  by 
the  desire  to  elicit  the  true  principles  on  which  the  law 
concerning  our  subject  is  based,  we  shall  be  especially 
careful  throughout  to  distinguish  from  received  authori- 
ties what  are  merely  our  inferences  or  suggestions ;  and  we 
promise  our  readers  most  religiously  to  abstain  from  any 
intentional  garbling  of  authority,  or  the  willful  withhold- 
ing of  any  decision  or  dictum  in  order  to  support  any 
particular  view  or  theory.  The  meager  attempts  hereto- 
fore made  to  reduce  the  subject  into  any  systematic  form 
will  oblige  us,  to  a  considerable  extent,  to  treat  the  sub- 
ject as  res  nova. 

§  18.  We  have  divided  our  subject  into  two  principal 
divisions — slander  and  libel.  Slander  and  libel  have  this 
in  common,  that  each  may  be,  and  usually  is,  effected  by 
means  of  language.  As  we  have  described  them,  their 
distinguishing  feature  of  difference  is,  that  the  one  is 
effected  by  oral  language,  the  other  by  written  language. 
To  language  in  writing  is  attributed  in  most  cases  a  greater 
capacity  for  injury  than  is  attributed  to  language  spoken 
or  speech,  so  that  language  which,  if  spoken,  gives  no 
right  to  redress,  may,  if  reduced  to  writing,  give  a  cause 
of  action.1     It  is  proper  to  say  that  the  broad  distinction 


2  A  distinction  was  very  early  taken  in  the  Roman  law  between  slander  spoken 
and  written,  and  the  injuria  verbalis  was  deemed  to  constitute  a  much  lower  degree 
of  injury  than  the  malum  carmen  and  famoaiis  libellus.  (Holt  on  Libel,  21.)  Holt 
wrote  in  1816.  He  says,  p.  225:  "It  has  lately  become  a  question  whether  there 
be  any  difference  between  written  and  unwritten  slander ;"  and  then  he  refers  to 
Bradley  v.  Methuen,  2  Ford's  MS.  78,  in  which  Lord  Hardwicke  is  reported  to  have 
said  that  courts  do  make  a  distinction  "  between  words  written  and  bare  words." 


68  DIVISION   OF   SUBJECT.  [Ch.  I. 

we  have  drawn  between  slander  and  libel  is  not  one  uni- 
versally adopted ; *  indeed  it  is  not  the  one,  in  our  judg- 
ment, the  most  logically  correct ;  but  we  adopt  it  partly  in 


In  Thorley's  case,  4  Taunt.  355,  the  question  was,  Whether  an  action  would  lie  for 
words  viritten,  when  such  action  would  not  lie  for  them  if  spoken?  " For  myself," 
said  Chief  Justice  Mansfield,  "I  cannot,  upon  principle,  make  any  difference  between 
words  written  (as  to  the  right  which  arises  out  of  them  to  bring  an  action)  and  words 
spoken  ;  but  the  difference  has  been  recognized  by  the  courts  for  at  least  a  century 
backwards,  and  has  been  established  by  Lords  Hardwicke,  Hale,  Holt,  and  others." 

This  species  of  defamation  [libel]  is  usually  called  written  scandal,  and  hereby  re- 
ceives an  aggravation  in  that  it  is  presumed  to  have  been  entered  upon  with  coolness 
and  deliberation,  and  to  continue  longer,  and  to  propagate  wider  and  farther  than  any 
other  scandal.     (Bac.   Abr.) 

The  distinction  between  verbal  and  written  slander  proceeds  upon  the  principle 
that  words  are  often  spoken  in  heat  upon  sudden  provocations,  and  are  fleeting  and 
soon  forgotten,  and  therefore  less  likely  to  be  permanently  injurious;  while  written 
slander  is  more  deliberate  and  malicious,  more  capable  of  circulation  in  distant 
places,  and  consequently  more  likely  to  be  permanently  injurious.  (1  Chit.  Gen. 
Pr.  45.) 

The  great  distinctioJi  between  libel  and  slander  is,  "  that  from  a  libel  damage  is 
always  implied  by  law,  whereas  some  kinds  of  slander  only  are  actionable  without 
proof  of  special  damage."     (Broom's  Comm.  p.  513  [762].) 

"Words  written  and  published  may  be  actionable  which,  if  spoken,  would  not  be 
so  without  special  damage.  But  they  must  be  such  as,  in  the  common  estimation  of 
mankind,  are  calculated  to  reflect  shame  and  disgrace  upon  the  person  concerning 
whom  they  are  written,  or  hold  him  up  as  an  object  of  hatred,  ridicule  and  contempt. 
(Fonville  v.  Nease,  Dudley,  S.  C.  303.)  As  to  what  is  libelous,  and  as  to  the  distinc- 
tion between  libel  and  slander.  (Rice  v.  Simmons,  2  Harring.  417 ;  Layton  v.  Harris, 
3  Harring.  406.)  Vox  emissa  void,  litera  scripta  manet.  (Beebev.  Bank  of  N.  Y.,  1 
Johns.  529,  571.) 

There  was  something  superstitious  in  the  horror  with  which  the  Icelanders  re- 
garded a  libel,  and  no  offence  among  them  was  more  surely  or  bloodily  avenged  than 
the  publication  of  satirical  verses,  or  the  setting  up  of  a  Nid — that  is,  an  insulting  or 
indecent  figure,  or  a  horse's  head  on  a  pole  on  the  lands  of  another.  (See  "  The 
Story  of  Burnt  Njal ;  or,  Life  in  Iceland  at  the  End  of  the  Tenth  Century."  By 
George  W.  Dasent,  D.  C.  S.)  It  is  a  marked  trait  in  the  character  of  the  Russian 
people  to  "  feel  corporeal  punishment  less  sensibly  than  a  verbal  insult.  This  idea 
has  a  religious  foundation  ;  a  good  Christian  cannot  admit  that  the  punishment  of 
fustigation  which  has  been  inflicted  on  the  Saviour  of  huinanitj-  can  be  for  a  man  a 
stain  of  infamy ;  he  believes  that  a  verbal  insult  affects  the  immortal  part  of  man, 
whereas  a  blow  only  produces  suffering  in  the  least  noble  part  of  his  being."  (Essai 
sar  V Histoire  de  la  Civilization  en  Russie.  Par  Ni colas  de  Gcrebtzoff.  Paris,  185S, 
vol.  II,  p.  575.     Westminster  Review,  January,  1864 — Art.  Russia.) 

1  It  does  not  apply  to  the  wrong  called  slander  of  title,  nor  to  language  affecting 
one  in  his  calling  or  office,  nor  to  proceedings  in  the  ecclesiastical  courts.  As  to 
this  last,  see  Ware  v.  Johnson,  2  Sir  Geo.  Lee's  Cases  in  Eccles.  Courts,  103.     Holt 


§    18.]  DIVISION    OF   SUBJECT.  69 

deference  to  a  very  prevalent  use  of  the  terms  slander  and 
libel,  to  distinguish  between  an  injury  by  speech  and  an 
injury  by  writing,  and  partly  because  by  this  arrangement 
one  word  suffices  to  denote  to  which  particular  branch  of 
the  subject  we  refer.  In  our  opinion,  the  more  logical  ar- 
rangement would  be  to  take  slander  or  defamation  as  the 
generic  term,  and  then  indicate  the  division  by  the  epi- 
thets oral  and  written.  There  are,  however,  objections  to 
this  division — among  others,  that  it  omits  effigy.  An- 
other mode  of  dividing  the  subject  is  to  take  libel  for  the 
generic  term,  and  then  distinguish  the  kind  by  the  epi- 
thets defamatory,  seditious,  &c}    This  is  objectionable  on 


says,  p.  211 :  "  It  is  evident,  moreover,  from  the  authorities,  that  words  written  of  a 
man  tending  to  disparage  him  in  his  profession  will  support  an  action,  although  the 
same  words  when  spoken  will  not;"  and  he  refers  to  King  v.  Lake,  Hardres,  471 ;  but 
that  case  does  not  authorize  any  such  doctrine. 

1  Blackstone  speaks  of  blasphemous,  immoral,  treasonable,  schismatical,  seditious 
or  scandalous  libels.  (4  Bl.  Comm.  ch.  xi.)  And  Lord  BoliDgbroke,  writing  to 
Queen  Anne,  Oct.  17th,  1*711,  says:  "I  have  discovered  the  author  of  another  scan- 
dalous libel,  who  will  be  in  custody  this  afternoon;  he  will  make  the  thirteenth  I  have 
seized  and  the  fifteenth  I  have  found  out."  In  Borthwick  on  Libel,  25,  note,  it  is 
6aid:  His  Lordship  seems  to  have  retained  the  adjective  [infamous]  in  reference  to 
the  usual  meaning  of  the  word  libel,  when  not  qualified,  in  the  law  of  Scotland,  which 
is  the  same  [meaning]  as  it  still  has  in  the  spiritual  courts  of  England.  It  would 
appear,  however,  that,  even  in  the  courts  of  common  law  in  England,  there  was 
formerly  some  doubt  whether  libel,  or  libellus,  by  itself,  was  the  proper  technical  ex- 
pression. This  we  learn  from  a  note  (a.  p.  4)  in  the  "  Digest  of  the  Law  Concerning 
Libels."  "Lord  Chief  Justice  Raymond,"  says  the  author,  "in  Curl's  case,  said  that 
he  did  not  think  that  libellus  was  always  to  be  taken  as  a  technical  word,  and  asked 
whether  action  would  lie  de  quodam  libello  intilulat — the  New  Testament — and 
whether  the  spiritual  court  did  not  proceed  upon  a  libel  ?  Mr.  Justice  Fortescue 
said  a  libel  was  a  technical  word  at  common  law.  Mr.  Justice  Rej-nolds  said  that 
libellus  did  not,  ex  vi  termini,  import  defamation,  but  was  to  be  governed  by  the  epi- 
thet added  to  it."     (2  Stra.  791.) 

In  Thorley's  case,  4  Taunt.  355,  the  expression  "  written  and  unwritten  slander  " 
is  used. 

Mr.  Heard,  in  his  treatise  on  libel  and  slander,  §  8,  uses  the  phrase  "  actionable 
libel."  This  implies  that  there  may  be  a  libel  which  is  not  actionable.  He  also 
uses  the  phrase  printed  libel.  In  the  index  to  the  same  treatise  is  the  phrase  "  iron- 
ical libel." 

The  Encyclopaedia  Britannica,  voce  Libel,  uses  the  phrase  "  defamatory  libel ;"  and 
the  statute,  6  and  7  Vict.,  ch.  xcvi,  uses  the  term  "  defamatory  words  and  libel "  in 
lieu  of  "  slander  and  libel." 


70  DIVISION   OF   SUBJECT.  [Ch.  I. 

many  grounds.  Upon  the  whole,  we  conclude  that  the 
division  we  have  adopted  will  be  found  obnoxious  to  as 
few  objections,  and  be  more  convenient,  than  any  other  we 
could  have  selected.  In  describing  the  matter  of  a  slan- 
der  or  libel — that  is,  the  speech  or  writing  which  may  or 
may  not  constitute  a  slander  or  a  libel,  but  which  is 
charged  to  be  a  slander  or  a  libel — we  shall  designate  it 
speech  or  writing,  as  the  matter  of  slander  or  libel  may  be 
intended ;  but  generally,  and  where  both  slander  and  libel 
are  used,  shall  employ  the  term  language  or  defamatory 
matter.  Neither  judges,  advocates,  nor  text  writers  con- 
fine themselves  to  the  terms  slander  and  libel,  but  employ 
the  terms  libel,  slander,  scandal,  calumny,  defamation,  de- 
traction, verbal  injury,  and  some  others,  without  any  ac- 
cord as  to,  and  with  very  little  regard  for,  their  definitions 
or  connotations.  We  shall  confine  ourselves  throuo-hout 
to  the  terms  slander  and  libel,  and  employ  them  as  dis- 
tinct terms  and  as  marking  the  division  between  an  offence 
by  means  of  speech  and  an  offence  by  means  of  writing  or 
effigy ;  but  in  using  the  phrase  law  of  libel,  we  desire, 
nothing  being  said  to  the  contrary,  to  be  understood 
as  meaning  and  including  as  well  the  law  applicable  to 
what  we  call  slander  as  to  what  we  call  libel. 


"  The  high  court  of  the  Paris  Parliament  commenced  a  prosecution  against  him 
for  libelous  defamation."  (Westminster  Review,  July,  1860;  Art.  The  French  Press, 
page  118,  Am.  Reprint.) 

"Mr.  J.  Mackenzie's  Narrative,  a  false  libel,  a  defence  of  Mr.  G.  "Walker,  <fec, 
1690,"  is  the  title  of  a  pamphlet  published  in  1690.  And  the  phrase  "fa'se  slander  " 
is  used ;  Finch's  Law,  185. 

In  an  ordinance  agreed  to  by  both  Houses  of  the  English  Parliament,  30th  Sep- 
tember, 1647,  the  word  libel  seems  to  be  used  in  the  sense  of  a  book  or  pamphlet. 
The  ordinance  runs  thus :  "  That  what  person  so  ever  shall  make,  write,  print,  pub- 
lish, sell  or  utter  any  book,  pamphlet,  treatise,  ballad,  libel,  or  sheet  of  news  whatso- 
ever, or  cause  so  to  be  done,  except  the  same  be  licensed  by  both  or  either  House  of 
Parliament,"  &c  The  word  libel  cannot  here  mean  a  defamatory  publication,  as  it 
is  not  to  be  supposed  the  Parliament  would  in  any  case  license  a  defamatory  publica- 
tion. 

Sometimes  any  unfair  statement  is  called  a  libel,  and  we  say  it  is  a  libel  on  hu- 
manity, on  the  goodness  of  God,  &c. 


§§  19,  20.]  definition-.  71 

§  19.  From  some  cause — perhaps  from  the  fact  that 
language  in  writing  may  amount  to  a  public  wrong — it 
has  happened  that  the  wrong  occasioned  by  writing 
(libel)  has  occupied  a  larger  share  of  attention  than  has 
the  wrong  occasioned  by  speech  (slander).1  Whether 
this  is  sufficient  to  account  for  the  circumstance  or  not, 
these  facts  result,  that  while  it  is  common  to  speak  of 
the  law  of  libel,  it  is  quite  uncommon  to  speak  of  the  law 
of  slander;  and  while  ingenuity  has  been  tortured  to 
frame  a  definition  of  libel  or  a  libel,  scarcely  any  attempts 
have  been  made  to  frame  a  definition  of  slander  or  a 
slander. 

§  20.  The  attempts  which  have  been  made  to  define 
libel  or  a  libel  are  so  many  as  to  be  almost  innumera- 
ble, yet  they  have  in  reality  been  unavailing ;  no  defini- 
tion, properly  so  called,  of  libel  or  a  libel  exists.2    The 


"The  phrase,  'action  for  words'  might  seem  to  be  always,  as  it  generally  is,  em- 
ployed by  the  English  lawyers,  in  reference  alone  to  words  spoken.  This,  however, 
is  not  the  case.  Thus,  Mr.  Tomlins,  in  his  Law  Dictionary  (voce  Action  II.  §  1), 
says :  '  Action  on  the  case /or  words  ;  which  is  brought  for  words  spoken  or  written.1 
This  passage  may  be  remarked  as  another  instance  of  the  varied  meaning  of  legal 
phrases."    (Borthwick  on  Libel,  22,  note.) 

1  Notwithstanding  we  observe  that  "A  Book  of  Entries,  by  W.  B.,"  A.  D.  1671, 
contains  eighteen  precedents  of  declarations  for  slander  and  not  one  for  libel — "  The 
English  Pleader,"  A.  D.  1734,  contains  several  declarations  in  slander,  but  not  one  in 
libel. 

5  "  It  is  to  be  observed  that  no  correct,  no  logical  definition  of  a  libel  has  evev 
been  given."     (George  on  Libel,  14.) 

Lord  Lyndhurst,  in  answer  to  the  question,  how  far  it  was  possible  to  define  the 
law  of  libel,  said:  "It  is  a  subject  to  which  I  have  paid  considerable  attention,  but  I 
must  freety  own  without  any  success  whatever.  I  hold  it  to  be  hardly  possible  to 
define  libels  by  which  guilt  may  be  incurred  as  tending  to  a  breach  of  the  peace,  to 
other  proceedings  of  a  violent  nature,  *  *  and  to  a  variety  of  other  heads. 
*  *  *  *  Any  definitions  that  I  have  ever  seen  given  had  one  or  other  of 
two  faults,  *  *  *  they  were  either  so  vague  as  not  to  specify  or  define 
anything,  or  *  *  they  were  only  rendered  particular  and  definite,  by  omit- 
ting some  species  of  libel  *  *  *  which  ought  to  have  been  compre- 
hended. *  *  *  I  have  never  yet  seen,  or  been  able  myself  to  hit  upon 
anything  like  a-definition  of  libel        *        *        which  possessed  the  requisites  of  a 


72  OF  LIBEL.  [Ch.  L 

term  libel  being  connotative,  its  definition  to  be  complete 
should  unfold  the  whole  meaning  it  involves,  the  whole 
of  what  is  connoted ;  should  "  select  from  among  the 
whole  of  its  properties  those  which  shall  be  understood 
to  be  designated  and  declared  by  its  name;"  "those 
which  unfold  its  nature,  which  are  peculiar  to  it  and 
which  are  not  found  in  a  like  combination  elsewhere." 
This  describes  a  real  definition  of  the  kind,  called  essen- 
tial, and  before  we  can  frame  such  a  definition,  we  must 
know  all  the  properties  of  our  subject,  and  then  select 
those  proper  for  the  purpose.  As  a  libel  comprehends  a 
complex  aggregate  of  particulars,  either  not  all  known  or 
not  all  agreed  upon,  it  may  be  impossible  to  circumscribe 
them  by  a  correct  and  compact  general  description. 

§  21.  The  definitions  which  have  been  attempted  have 
been  framed  as  supposed  standards  by  which  to  deter- 
mine of  any  given  proposition  whether  or  not  it  consti- 
tutes a  libel;  and  experience  demonstrating  the  total 
worthlessness  for  any  practical  purposes  of  these  supposed 
definitions,  it  has  come  to  be  taken  for  granted,  at  least 
by  some,  that  there  is  that  inherent  in  the  subject  which 
prevents  the  possibility  of  its  definition.  This,  although 
imputed  to  libel  as  a  peculiarity,  is  not  so  in  fact,  the  like 
difficulty  attaches  to  many  other  terms,  and  particularly 
to  every  other  wrong.     An  attempt  to  frame  a  concise, 


definition,  and  I  cannot  help  thinking  that  the  difficulty  is  not  accidental,  but  essen- 
tially inherent  in  the  nature  of  the  subject.  *  *  *  The  Latin  of  libel  is 
not  Melius  but  Melius  famosus.  *  *  Libel  then  means,  in  its  original,  not 
"  little  book"  but  "a  defamatory  little  book."  *  *  *  Libel  is  an  offence 
of  a  somewhat  vague  description,  but  sufficiently  known  in  law,  and,  perhaps,  as  well 
defined  as  assaults  and  some  others ;  and  I  do  not  believe,  from  all  the  experience  I 
have  had,  that  in  practice  any  considerable  difficulty  is  felt  on  account  of  its  indis- 
tinctness."    (Report  of  House  of  Lords  on  Defamation  and  Libel,  July,  1S43.) 

At  Rome,  the  cards  of  the  races,  with  the  names  and  colors  of  the  riders  and 
drivers,  were  called  libelli. 


21.]  OF    LIBEL.  73 


real,  essential  definition  of  any  other  wrong,  will  disclose 
the  like  difficulties  as  occur  in  the  case  of  libel.1 


1  As  Cousin  said,  when  asked  to  state  in  a  single  sentence  the  spirit  of  German 
philosophy,  "  These  things  do  not  sum  themselves  up  in  single  sentences." 

We  subjoin  some  specimens  of  the  attempts  to  define  libel: 

In  Wasson  v.  Walter,  see  in  note  to  §  219,  post,  the  plaintiff,  a  barrister,  gave 
the  following  neat  designation  of  libel — "Defamation  without  legal  excuse."  We 
esteem  this  as  the  most  successful  among  the  many  attempts  to  define  libel.  (See 
§  50,  post.) 

It  is  not  infamous  matter  or  words  which  make  a  libel;  for,  if  a  man  speak  such 
words,  unless  they  are  written,  he  is  not  guilty  of  the  making  of  a  libel ;  writing  is  of 
the  essence  of  a  libel.  (Ld.  Raym.  416.)  In  order  to  constitute  a  libel,  the  subject- 
matter  complained  of  must  be  a  subject  of  visible  perception.  But,  provided  ouly  it 
be  an  object  of  visible  perception,  a  libel  does  not  appear  to  be  confined  to  any  par- 
ticular form  or  shape.  By  the  requisite,  which  is  essential  to  the  existence  of  a  libel, 
that  it  be  an  object  of  visible  perception,  libel  is  distinguished  from  what  is  techni- 
cally called  defamation  or  spoken  slander.  Again  :  "  The  words  most  nearly  synony- 
mous to  the  word  libeling,  are  defaming,  disparaging,  aspersing,  slandering."  (George 
on  Libel,  pp.  35,  36,  41.) 

"  A  libel  is  a  contumely  or  reproach,  published  to  the  defamation  of  the  govern- 
ment, of  a  magistrate,  or  of  a  private  person."     (Comyn's  Digest.) 

A  libel  is  a  malicious  publication,  tending  to  the  disrepute  of  an  individual,  the 
breach  of  the  peace,  the  seditious  violation  of  the  good  order  of  government.  (Capel 
Loft's  Essay  on  Libels,  edit.  1785,  p.  6.) 

The  American  Encyclopedia,  voce  Libel,  refers  to  the  following  definition  of  libel 
as  the  best  definition:  "  A  libel  is  any  published  defamation."  And  the  same  article 
states  the  difference  between  libel  and  slander  to  consist  in  this,  that  libel  is  pub- 
lished defamation,  and  slander  is  spoken  defamation. 

Written  defamation  is  otherwise  termed  libel,  and  oral  defamation  slander.  (Bur- 
rell's  Law  Diet.) 

Defamatory  words,  written  and  published,  constitute  a  libel.     (Maunder.) 

Libel,  a  word  which  has  many  different  meanings,  but  is  chiefly  known  in  this 
couutry  a3  the  name  of  a  department  of  the  law,  which,  from  incidental  circum- 
stances, has  come  to  include  the  naturally  distinct  heads  of  written  slander,  sedition, 
and  outrage  against  religion.     (Eucyc.  Brit,  voce  Libel.) 

A  libel  has  been  usually  treated  of  as  scandal,  written  or  expressed  by  symbols. 
Libel  may  be  said  to  be  a  technical  word,  deriving  its  meaning  rather  from  its 
use  than  its  etymology.  (Russell's  Treatise  of  Crimes  and  Misdemeanors,  edit. 
1819,  p.  308.) 

In  a  strict  sense  it  [libel]  is  taken  for  a  malicious  defamation,  expressed  either  in 
printing  or  writing ;  in  a  larger  sense,  the  notion  of  libel  maybe  applied  to  any 
defamation  whatsoever,  expressed  either  by  signs  or  pictures,  as  by  affixing  up  a 
gallows  at  a  man's  door,  or  by  painting  him  in  a  shameful  and  ignominious  manner. 
(Hawkins'  PL  Cr.) 

Libel,  a  criminous  report  of  any  man   cast  abroad  or  otherwise  unlawfully  pub- 
lished in  writing,  but  then,  for  difference  sake,  it  is  called  an  iD famous  libel — / 
libellus.     (Minshaei:    A  Guide  into  the  Tongues,  &c.  London,  lr.-jT.j 

Written  or  printed  slanders  are  libels.     (Bouvier.) 
G 


T4  DEFINITION"  [Cll.  I. 

§  22.  It  is  rare,  indeed,  that  we  can  frame  a  real, 
essential  definition,  but  by  a  definition  is  sometimes 
understood   such   an    explanation    of    a    given   term   as 


"All  publications  injurious  to  private  character  or  credit  of  another  are  libel- 
lous." (Addison  on  Wrongs,  referred  to  as  a  good  definition :  McXally  v.  Oldham,  8 
Law  Times,  Rep.  N.  S.  604.) 

"A  libel  is  anything  of  which  ;my  one  thinks  proper  to  complain."  (Essay  pre- 
fixed to  report  of  Finnerty's  Trial;  supposed  to  be  from  Jeremy  Bentham's  Writings.) 
It  is  also  quoted  thus :  "  A  libel  is  anything  published  upon  any  matter  of  anybody, 
which  any  one  was  pleased  to  dislike."  Attributed  to  Bentham,  cited  in  pamphlet — 
Trial  of  David  Lee  Child. 

A  libel  is  a  censorius  or  ridiculing  writing,  picture,  or  sign,  made  with  a  mis- 
chievous and  malicious  intent  towards  government,  magistrates,  or  individuals.  {Per 
Hamilton,  arg.  People  v.  Crosswell,  3  Johns.  C.  35-1 ;  adopted  Steele  v.  Southwick,  9 
Johns.  214  ;  Cooper  v.  Greeley,  1  Den.  347.) 

A  libel  is  a  malicious  publication  in  printing,  writing,  signs,  or  pictures,  imputing 
to  another  something  which  has  a  tendency  to  injure  his  reputation  ;  to  disgrace  or 
to  degrade  him  in  society,  and  lower  him  in  the  esteem  and  the  opinion  of  the  world, 
or  to  bring  him  into  public  hatred,  contempt,  or  ridicule.  (State  v.  Jeandell,  5 
Harring.  [Del.]  4*75.) 

Everything  written  of  another,  holding  him  up  to  scorn  and  ridicule,  and  calculated 
to  provoke  a  breach  of  the  peace,  is  a  libel.  (Torrance  v.  Hurst,  "Walker,  403  ;  New- 
braugh  v.  Curry,  Wright,  47.) 

Every  publication  by  writing,  printing,  or  painting,  which  charges  or  imputes  to 
anv  person  that  which  renders  him  liable  to  punishment,  or  which  is  calculated  to 
make  him  infamous,  odious,  or  ridiculous,  is,  pr ima  facie,  a  libel,  and  implies  malice 
in  the  publisher.     (White  v.  Nicholls,  3  How.  U.  S.  266.) 

A  publication,  to  be  a  libel,  must  tend  to  injure  the  plaintiff's  reputation,  and 
expose  him  to  public  hatred,  contempt,  and  ridicule.  (Armentrout  v.  Moranda,  8 
Blackf.  426.) 

Any  publication,  the  tendency  of  which  is  to  degrade  and  injure  another  person, 
or  to  bring  him  into  contempt,  hatred,  or  ridicule,  or  which  accuses  him  of  a  crime 
punishable  by  law,  or  of  an  act  odious  and  disgraceful  in  society,  is  a  libel.  (Dexter 
v.  Spear,  4  Mason,  115.) 

A  libel  is  a  malicious  publication  expressed  either  in  printing  or  writing,  or  by 
signs  and  pictures,  tending  either  to  blacken  the  memory  of  one  dead,  or  the  reputa- 
tion of  one  who  is  alive,  and  expose  him  to  public  hatred,  contempt,  or  ridicule. 
(Commonwealth  v.  Clapp,  4  Mass.  163,  168.  Per  Ch.  J.  Parsons,  quoted  in  Root  v. 
King,  7  Cow.  613.) 

A  libel  is  a  censorious  or  ridiculing  writing,  picture,  or  sign,  made  with  a 
mischievous  intent.     (The  State  v.  Farley,  4  M'Cord,  317.) 

A  publication  is  a  libel  which  tends  to  injure  one's  reputation  in  the  common 
estimation  of  mankind,  to  throw  contumely  or  reflect  shame  and  disgrace  upon  him, 
or  hold  him  up  as  an  object  of  hatred,  scorn,  ridicule,  and  contempt,  although  it 
imputes  no  crime  liable  to  be  punished  with  infamy,  or  to  prejudice  him  in  his  em- 
ployment. So  every  publication  by  writing,  printing,  or  painting,  which  charges  or 
imputes  to  any  person  that  which  reuders  him  liable  to  punishment,  or  which  is 


§  22.] 


OF   LIBEL. 


conveys  an  idea  of  its  connotation,  and  enables  us  to 
distinguish  it  from,  and  prevents  our  confounding  it  with, 
any  other  term  of  a  similar,  but  not  the  same,  import. 


calculated  to  make  him  infamous  or  odious  or  ridiculous,  is  prima  facie,  a  libel.  (1 
Hilliard  on  Torts,  ch.  vii,  §  13.) 

Holt,  in  his  treatise,  p.  213  [223],  defines  libel  as  against  private  persons  thus: 
"  Everything,  therefore,  written  of  another  which  holds  him  up  to  scorn  and  ridicule, 
that  might  reasonably  (that  is,  according  to  our -natural  passions)  be  considered  as 
provoking  him  to  a  breach  of  the  peace,  is  a  libel."  Mr.  Mence  (Law  of  Libel,  vol.  I, 
p.  120),  referring  to  this  passage  in  Holt,  says  :  "This  agrees  with  his  two  preceding 
definitions,  and  with  the  common  acceptation  of  the  term  libel,  by  making  it  essential 
that  the  subject  or  object  of  the  attack  should  be  some  person  or  persons ;  but  it  dis- 
agrees with  them,  by  introducing  the  tendency  to  provoke  a  breach  of  the  peace.  It 
follows  that,  if  this  be  a  correct  definition,  the  other  two  must  be  defective,  because, 
in  one  of  them,  the  tendency,  or  (as  is  there  said)  the  intent  to  provoke  is  required 
only  in  cases  where  the  object  of  the  slander  is  a  deceased  person,  and  in  that  from 
Lord  Coke  it  is  wholly  omitted.  On  the  other  hand,  if  the  two  former  definitions  be 
correct,  the  third  must  necessarily  be  inaccurate,  for  an  accurate  definition  is  one 
which  neither  omits  what  is  essential,  nor  admits  what  is  superfluous.  *  *  * 
And  it  is  to  be  further  observed  that  the  third  definition  disagrees  with  the  two  former 
and  the  common  acceptation  of  the  term  libel,  not  only  by  introducing  the  intent  or 
the  tendency  to  provoke,  but  by  leaving  out  the  falsehood  and  malice.  For  libel,  in 
common  acceptation,  signifies  written  slander;  and  the  term  slander  and  all  its 
synonyms,  as  defamation,  detraction,  calumny,  even  without  the  epithets  malicious 
and  injurious,  imply  falsehood  and  malice." 

"The  familiar  acceptation  of  the  word  libel  is  no  less  simple  and  intelligible  [than 
the  term  horse-stealing],  but  the  legal  and  technical  use  is  as  if  horse-stealing  stood 
not  only  for  stealing  a  horse,  but  for  murder,  arson,  larceny,  and  other  crimes  more 
or  less  atrocious  ;  and  even  for  actions  not  criminal,  or  of  which  the  criminality  is  at 
least  doubtful,  and  not  to  be  measured  or  ascertained  till  we  have  separated  them 
from  the  greater  crimes  with  which  they  are  confounded.  This  perverse  and  cabal- 
istic use  of  language  it  is  that  has  given  birth  to  so  much  of  the  obscurity  with 
which  the  law  of  libel  is  reproached.  And  nothing  can  be  easier  than  to  reform  it. 
"We  have  only  to  consider  written  challenges  to  fight  as  a  class  by  themselves;  to 
class  blasphemous  writings  under  the  head  of  blasphemy ;  obscene  and  grossly 
indecent  or  immoral  writings  under  the  head  of  obscenity;  or  both  these  heads, 
together,  under  that  of  offences  immediately  against  God;  seditious  writings  under 
the  head  of  sedition;  and  all  other  writings  denominated  libels  under  the  two 
distinct  heads  of  libels  and  censure,  as  they  are  either  tainted  with  falsehood  and 
malice,  or  criminal  by  carrying  upon  them  the  manifest  intent  to  provoke  a 
breach  of  the  peace,  or  by  having  a  tendency,  or  of  being  merely  suspected  of  having 
a  tendency,  so  to  do."  And,  on  page  181,  he  says:  "This  is  blasphemy  under  the 
title  of  libel  upon  the  Christian  religion,  classed  or  confounded,  as  is  obscenity  also, 
with  crimes  (if  crimes  they  be),  from  which  it  differs  as  much,  both  in  kind  and 
degree,  as  murder  does  from  picking  a  pocket  or  robbing  a  hen-roost."  (1  Mence  on 
Libel,  125.) 

In  several  of  the  States,  libel  has  been  defined  by  statute.  Thus,  in  Maine,  it  is 
enacted  that  "  a  libel  shall  be  construed  to  be  the  malicious  defamation  of  a  person, 


76  DEFENTTIOISr  [Ch.  L 

"Wlien  we  employ  definition  in  this  sense,  and  for  this 
purpose  merely,  it  ceases  to  "be  important  whether  the 
definition  adopted  be  strictly  accurate.  If  we  always 
employ  the  term  in  that  one  predetermined  sense,  it 
serves  to  avoid  confusion,  and  enables  us  to  reason  upon 
it  with  certainty.  Mathematical  science  is  certain,  not 
because  its  definitions  are  true,  but  because  they  are 
certain ;  and  legal  science  is  only  uncertain  because  its 
definitions  are  uncertain.1  We  may  ensure  certainty  by 
having  definitions  which,  however  defective  in  other 
respects,  at  least  admit  of  our  using  the  terms  defined 


made  public  either  by  any  printing,  writing,  sign,  picture,  representation,  or  effigy, 
tending  to  provoke  him  to  wrath,  or  expose  him  to  public  hatred,  contempt,  or  ridi- 
cule, or  to  deprive  him  of  the  benefits  of  public  confidence  and  social  intercourse  ;  or 
any  malicious  defamation,  made  public  as  aforesaid,  designed  to  blacken  and  vilify 
the  memory  of  one  that  is  dead,  and  tending  to  scandalize  or  provoke  his  surviving 
relatives  or  Wends."  And  in  Illinois  it  is  enacted,  "  a  libel  is  a  malicious  defamation, 
expressed  either  by  printing  or  by  sijjns,  or  the  like,  tending  to  blacken  the  memory 
of  one  who  is  dead,  or  to  impeach  the  honesty,  integrity,  virtu.',  or  reputation,  or 
publish  the  natural  defects  of  one  who  is  alive,  and  thereby  to  expose  him  or  her  to 
public  hatred,  contempt,  or  ridicule."  Definitions  of  the  like  import  are  to  be  found 
in  the  statute  books  of  some  other  States. 

See  Maine  Rev.  Stat,  1840,  ch.  clxv,  ^  1  ;  Iowa  Rev.  Code  of  1851,  ch.  cli,  art. 
2161;  Arkansas  Rev.  Stat.  1837,  div.  VIII,  ch.  xliv,  art.  2,  §  1,  p.  280;  Georgia, 
Prince's  Dig.  pp.  643,  G44;  Hotchk.  Dig.  p.  739 ;  Cobb's  Dig.  vol  11.  p.  812;  California 
Stat.  1850,  ch.  xcix,  §  120;  Illinois  Rev.  Stat.  1845,  Crim.  Code,  g  12'". 

1  "  Mathematics  will,  in  no  greater  degree  than  theology  or  metaphysics,  jrive  us 
'  certainty  by  rigid  demonstration '  without  the  assumption  of  those  primary  truths 
which  we  accept,  because  we  are  so  constituted  that  we  must  accept  them." — 
minster  Review,  October,  1SG4;  art.  Dr.  Newman's  Apologia.)  The  question,  What 
is  the  foundation  of  mathematical  demonstration  ?  was  discussed  by  Dugald  Stewart, 
and  the  conclusion  at  which  he  arrived  was,  that  the  certainty  of  mathematical 
reasoning  arose  from  its  depending  on  definitions.  And  further,  that  mathematical 
truth  is  hypothetical;  if  the  definitions  are  assumed,  the  conclusion  follows,  Mr. 
Whewell  controverts  these  views.  See  "The  Mechanical  Euclid,"  Ac.,  and  Remarks 
on  Mathematical  Reasoning,  &c,  by  the  Rev.  W.  Whewell,  M.A.,  and  Edinburgh 
Review,  April,  1838. 

"  Nothing  is  harder  than  a  definition.  While,  on  the  one  hand,  there  is  for  the 
most  part  no  easier  task  than  to  detect  a  fault  or  a  flaw  in  the  definition  of  those  who 
have  gone  before  us;  nothing,  on  the  other  hand,  is  more  difficult  than  to  propose  one 
of  our  own  which  shall  not  also  present  a  vulnerable  side."  — Dean  Trench.  See 
Burrill's  Law  Diet,  voce  Definition,  and  2  Wooddes.  Lect.  196. 

"The  greater  portion  of  all  law  business  arises  from  the  impossibility  of  giving 
absolute  definitions  for  things  that  are  not  absolute  in  themselves." — (Lieber's  Civil 
Liberty,  23  note.) 


§    22.]  OF   LIBEL.  77 

always  in  one  and  the  same  sense,  and  always  so  using 
them.  We  shall  not  attempt  to  construct  real  definitions 
of  slander  and  libel,  but  to  definitely  mark  what  is  meant 
when  those  terms  are  employed ;  we  define  slander  and 
libel  as  wrongs  occasioned  by  language  or  effigy — that  is  to 
say,  slander  is  a  wrong  occasioned  by  speech,  and  libel  is  a 
wrong  occasioned  by  writing  or  effigy. 


CHAPTER    II 

nOW  OXE  may  affect  axothee,  by  language. 

Language  can  have  no  effect  unless  published — It  must  he 
true  or  false,  commendatory  or  discommendatory — 
Must  concern  a  person  or  thing — Its  effect,  direct  or 
indirect,  or  both — Reputation. 

§  23.  Language  may  exist  as  mere  thought,  but, 
before  it  can  have  any  effect  ultra,  the  individual  with 
or  in  whom  it  originated,  it  must  be  expressed ;  it  must 
come  into  existence  as  an  expression,  by  sound,  as  in 
speech,  or  by  sign,  as  in  writing  or  effigy ;  and  not  only 
must  it  be  expressed,  it  must  also  be  published — that  i>, 
communicated  by  the  individual  with  or  in  whom  it 
originated  to  some  other. 

§  24.  Language  when  employed  to  communicate  ideas 
must  assume  the  form  of  a  proposition,  or  a  series  of 
propositions ;  by  a  proposition  being  meant,  "  discourse 
which  affirms  or  denies  something  of  some  person  or 
thing,  the  subject  of  the  proposition."  Every  proposition 
is  an  assertion,  and  must  be  either  true  or  false — that  is, 
it  must  assert  of  its  subject  that  which  is  true,  or  that 
which  is  false,  and  the  assertion  may  be  either  of  com- 
mendation or  discommendation. 

§  25.  Language  must  concern  either  a  person  or  a 
thing,  or  both,  and  it  may  concern  a  person  in  his  indi- 
vidual and  natural  capacity  merely,  or  in  some  acquired 
or  artificial  relation  or  capacity  as  a  trader,  an  office- 
holder, or  as  the  author,  owner,  or  possessor  of  some 
certain  thing. 


§§    26-29.]  EFFECT   OF   LANGUAGE.  79 

§  26.  The  effect  of  the  publication  of  language  upon 
a  person,  other  than  the  author  or  publisher  of  the 
language,  must  be  direct  or  indirect,  or  both. 

§  27.  Language  cannot  directly  affect  a  thing;  what- 
ever direct  effect  it  can  have  must  be  upon  a  person. 

§  28.  Language,  whether  it  concerns  a  person  or  a 
thing,  may  have  a  direct  effect  upon  the  person  to  whom 
it  is  published,  but  upon  none  other.  It  may  directly 
affect  the  feelings,  health,  belief,  or  opinion  of  him  to 
whom  it  is  published,  and  it  may  influence  or  excite  him 
towards  a  particular  course  of  action  or  forbearance  by 
himself,  or  in  respect  of  himself  or  his  affairs,  or  in 
respect  of  some  other  person  or  some  thing,  or  the  affairs 
of  some  other  person.  It  may  either  please  or  displease 
him,  or  cause  him  to  feel  pleased  or  displeased  with  some 
other  person  or  thing,  or  cause  him  to  do  some  act  or  to 
abstain  or  resolve  to  abstain  from  doing  some  act  to  the 
advantage  or  disadvantage  of  himself  or  some  other,  or 
cause  him  to  think  better  or  worse  of  himself  or  of  some 
other  person  or  of  some  thing.  That  other  person  may  be 
either  he  who  makes  the  communication  or  he  whom  the 
language  concerns.  All  the  direct  effects  of  the  publica- 
tion of  language  are  personal  to  the  individual  to  whom 
the  publication  is  made,  and  can  extend  no  further.  The 
publication  of  language  can  have  no  direct  effects  other 
than  those  we  have  enumerated ;  whatever  other  effects 
may  result  frorn  the  publication  of  language  must  be 
indirect  or  consequent  upon  one  or  other  of  some  of  these 
enumerated  direct  effects. 

§  29.  The  kind  of  effect  produced,  i.  e.,  the  direct  or 
indirect  effect,  must  be  the  same  whether  the  publication 
be  by  sound  (speech),  or  by  sign  (writing  or  effigy),  but 
the  mode  of  publication  may  affect  the  amount  of  effect 
produced. 


80  EFFECT    OF   LANGUAGE.  [CL  II. 

§  80.  It  is  scarcely  supposable  that  the  publication  of 
lano-uao'e  which  concerns  another  or  his  affairs  can  pro- 
duce  no  direct  effect,  but  it  is  easy  to  suppose  that  it  may 
not  produce  any  indirect  effect.  The  publication  may 
occasion  a  resolve  (a  direct  effect),  and  that  resolve  may 
never  be  put  into  execution  (produce  no  indirect  effect), 
or  it  may  occasion  a  change  in  the  opinion  entertained  of 
another,  and  that  other  may  never  be  otherwise  in  any 
the  least  degree  affected  by  that  change  of  opinion.  The 
change  of  opinion  may  not  prevent  or  occasion  any  action 
different  from  what  would  otherwise  have  been  done  or 
forborne ;  while,  however,  this  is  supposable,  it  is  improb- 
able ;  the  possibility,  however,  of  such  an  occurrence 
suffices  for  our  purpose.  Sometimes,  indeed,  the  direct 
and  indirect  effects  are  apparent,  and  their  extent  ascer- 
tainable; and  again,  it  may  be  that  neither  the  direct 
nor  the  indirect  effect  is  apparent  nor  its  extent  ascertain- 
able. 

§  31.  It  is  impossible  to  anticipate  all  the  indirect 
effects  which  may  result  from  the  publication  of  lan- 
guage ;  experience  has  made  us  acquainted  with  some  of 
them,  and  to  these  we  shall  have  occasion  to  refer  by  way 
of  illustration. 

§  32.  Among  the  direct  effects  of  the  publication  of 
language  which  we  have  enumerated  is  the  occasioning 
the  person  to  whom  the  publication  is  made  to  think  well 
or  ill  of  another.  Now,  what  one  thinks  of  another  is  the 
reputation  of  that  other,  and  hence,  when  by  language 
one  is  induced  to  think  ill  of  another,  the  reputation  of 
that  other  suffers  disparagement.1  That  others  think  well 
of  him  is  as  gratifying  to  a  man  as  that  others  think  ill.  of 


1  Reputation  is  the  estimate  in  which  an  individual  is  held  by  public  fame  in  the 
place  where  he  is  known.     (Cooper  v.  Greeley,  1  Denio,  347,  365.) 

"  Character  is  defined  by  Webster  to  be  the  peculiar  qualities  impressed  by 
nature  or  habit  on  a  person,  which  distinguish  him  from  others ;  these  constitute  real 


§    32.]  EFFECT    OF   LANGUAGE.  81 

him  is  distasteful,  but  their  merely  thinking  well  or  ill  of 
him  by  itself  can  neither  benefit  nor  prejudice  him.  Un- 
less in  consequence  of  the  opinion  thus  entertained,  some 
act  is  done  or  forborne  m  reference  to  him  or  his  affairs, 
which  would  not  otherwise  have  been  done  or  forborne, 
he  is  physically  and  pecuniarily  in  nowise  better  nor 
worse  for  such  opinion.  It  cannot  affect  his  person  or  his 
property.  In  the  ordinary  course  of  events  some  indirect 
effect  does  always  result  from  the  publication  of  language. 
The  probability  or  improbability  of  any  indirect  effect 

character,  and  the  qualities  he  is  supposed  to  possess  constitute  his  estimated  character 
or  reputation."    {Per  Welles,  J.,  in  Carpenter  v.  The  People,  8  Barb.  608.) 

"If  the  word  reputation,  when  unqualified,  does,  ex  vi  termini,  or,  in  common  par- 
lance, mean  general  reputation — as  we  think  it  does — it  is  unnecessary  to  prefix  the 
word  general."     (French  v.  Millard,  22  Ohio  Rep.  50.) 

"  Reputation  is  thinking.  I  repute  a  man  to  be  good  or  bad — that  is,  I  think  him 
to  be  so."  (Maule,  J.,  Doe  dem.  Padwick  v.  Wittcomb,  15  Jur.  778;  5  Eng.  Law  & 
Eq.  Rep.  487.) 

"  The  mere  entry  of  something  that  was  in  a  lease  is  not  any  expression  of  opinion 
or  reputation."     (Cresswell,  J.,  id.) 

"The  words  character  and  reputation  are  often  used  as  synonymous  terms 
though  in  fact  not  synonymous."  (Bucklln  v.  Ohio,  20  Ohio  R.  18;  French  v.  Mil 
lard,  22  id.  50.) 

"  Character  is  a  term  convertible  with  common  report."  (Kimmel  v.  Kimmel,  3 
Serg.  <t  R.  337.     Gibson,  J.) 

Character  and  reputation  are  the  same.     (Id.,  Duncan,  J.) 

"  General  character  is  the  estimation  in  which  a  person  is  held  in  the  community 
where  he  resides."     (Marcy,  J.,  Douglass  v.  Tousey,  2  Wend.  354.) 

"Public  opinion  is  the  question  in  common  cases  where  character  is  in  issue." 
(Boynton  v.  Kellogg,  3  Mass.  R.  192.     Parsons,  Ch.  J.) 

The  word  character  has  been  variously  used  in  legal  proceedings,  and  sometimes 
denotes  the  personal,  official,  or  special  character  in  which  a  party  sues  or  is  sued  as 
executor,  officer,  &c,  but  it  more  frequently  refers  to  reputation  or  common  report. 
(1  Cow.  «fe  Hill,  notes,  460,  1768;  Leddy  v.  Tousey,  2  Wend.  352;  King  v.  Root,  4 
Wend.  113.)  It  is  seldom  used  as  synonymous  with  mere  inclination  or  propensity, 
or  even  secret  habit,  nor  is  descriptive  of  the  mere  qualities  of  individuals,  only  so 
far  as  others  have  formed  opinions  from  their  conduct.  (Safford  v.  The  People,  1 
Parker's  Crim.  R.  478  ) 

General  character  is  the  result  of  general  conduct.  (Sharp  v.  Scoggin,  Holt's 
N.  P.  C  541 ;  3  Amer.  Law  J.  X.  S.  145.) 

Proof  of  general  bad  character — as  that  term  is  generally  understood  and  used  in 
society — does  not  necessarily  and  legally  prove  the  fact  that  the  witness'  character 
for  veracity  is  bad.     (Gilbert  v.  Sheldon,  13  Barb.  627.) 

"  Chaste  character"  means  actual  personal  virtue — not  mere  reputation.  (Car- 
penter v.  The  People,  8  Barb.  603 ;  Crozier  v.  The  People,  1  Park.  Cr.  R.  453 ;  Safford 
v.  The  People,  id.  474.) 


82  EFFECT    OF   LANGUAGE.  [Ch.  II. 

resulting  depends  sometimes  on  the  kind  of  language 
published,  and  sometimes  on  the  circumstances  of  the 
publication,  and  sometimes  on  Loth  the  kind  of  language 
published  and  the  circumstances ^>f  the  publication. 

§  33.  We  conclude,  therefore,  that  there  may  be  an 
injury  to  the  reputation  without,  and  independently  of, 
an  injury  to  the  person  or  property,  and  that  an  injury  to 
the  reputation  does  not  necessarily  imply  an  injury  to  the 
person  or  the  property.1 


1  Domat  Civil  Law,  Public  Law,  Book  III,  enumerates  "defamatory  libels"  among 
private  offences,  and  in  the  same  book,  title  1,  "  of  crimes  and  offences,"  enumerates 
three  kinds  of  "goods;"  "the  third  is  that  good  which  is  called  honor,  and  which 
men  value  above  all  other  goods."  The  author  then  proceeds  to  inquire  what  is  sig- 
nified by  the  term  honor,  and  concludes,  "lastly.it  signifies  reputation."  Further 
on  it  is  laid  down  that  honor  may  be  wounded,  either  by  injurious  treatment  of  the 
honor  or  by  assaulting  the  reputation,  for  one  may  offend  another's  honor  by  actions 
or  by  opprobrious  language,  without  lessening  his  reputation,  and  we  may  blemish 
his  honor  by  words,  by  writing,  and  other  attempts  against  his  reputation,  or  one 
may  attack  by  one  and  the  same  way  both  the  reputation  and  person  of  another. 


CHAPTER  III.1 

eights;  duties;  wrongs;  eemedies. 

Description  of  Rights  and  Duties —  Wrongs,  Rights,  and 
Duties  undefinable —  What  determines  of  any  act   if 
it    be    a    Wrong — Remedies — Injunction — Original 
Writs. 

§34.  Having  in  a  preceding  chapter,  [ch.  i,]  de- 
scribed slander  and  libel  as  wrongs,  it  is  proper  to 
explain  what  is  meant  by  a  wrong,  and  to  that  end  we 
must  briefly  consider  the  nature  of  rights  and  duties. 
For  the  opposite  to  a  right  is  not  a  wrong,  but  a  duty. 

§35.  Rights  and  duties  are  neither  persons  nor  things, 
but  powers  and  obligations.  A  right  is  a  power  to  do  or 
forbear  or  require  another  to  do  or  forbear.  A  duty  is  an 
obligation,  a  necessity  to  do  or  forbear,  or  to  submit  to 
some  act  of  another.  We  hear  frequently  of  "  moral  and 
social  duties  of  imperfect  obligation," 2  but  really  there  is 
no  such  thing  as  a  duty  of  imperfect  obligation,  what  is  so 
denominated  is  really  a  right — a  right  which  should  be 
exercised,  but  which,  as  in  the  case  of  all  rights,  the  person 
in  whom  it  is  vested,  may  or  may  not  exercise  at  his 
option.  "  Rights  are  universal  and  unexceptive,  or,  if  not 
so,  then  they  are  none  at  all."  3 


1  For  the  tenor  of  this  chapter  we  acknowledge  our  indebtedness  to  the  general 
part  of  "Thibaut's  System  of  Pandekten  Rechts,"  as  translated  by  Lindley;  also  to 
Mr.  Maine's  admirable  book,  "  Ancient  Law,  or,  an  Inquiry  into  the  Origin  of  Legal 
Ideas."  As  to  rights  and  duties,  reference  may  be  had  to  Austin's  Lectures  on 
Jurisprudence. 

2  Harrison  v.  Bush,  5  El.  &  Bl.  344. 

8  Essay  on  Ultimate  Civilization.     By  Isaac  Taylor. 


84  EIGHTS    AXD    DUTIES.  [Ch.  HL 

§  36.  The  object  of  a  right  or  duty  is  a  transaction. 
By  transaction  is  meant  an  act,  and  the  occasion  on  which 
the  act  is  enacted. 

§  37.  Eights  and  duties  are  reciprocal.  The  act  which 
one  has  the  right,  the  power,  to  do  or  forbear,  that  no 
other  can  or  should  hinder  or  compel  the  doing  or  for- 
bearing ;  but  to  such  doing  or  forbearing  it  is  the  duty, 
the  necessity,  of  every  other  to  submit ;  and  what  one  has 
the  right,  the  power,  to  command  another  to  do  or  for- 
bear, that  it  is  the  duty,  the  necessity,  of  that  other  to  do 
or  forbear ;  what  it  is  the  duty  of  one  to  do  or  forbear, 
that  it  is  the  right  of  some  other  to  have  done  or  for- 
borne ;  what  it  is  the  duty  of  one  to  do,  to  that  it  is  the 
duty  of  every  other  to  submit. 

§  38.  Rights  and  duties  pertain  solely  to  persons.  A 
thing  cannot  have  any  rights  and  cannot  owe  any  duties. 
And  as  a  thing  has  no  rights,  a  person  cannot  owe  a  duty 
to  a  thing. 

§  39.  The  exercise  of  a  right  is  always  optional ;  the 
performance  of  a  duty  is  always  compulsory.  One  may 
forego  the  exercise  of  a  right,  or  exercise  it,  at  his  option, 
for  either  way  no  right  of  any  other  suffers ;  but  one  can- 
not, at  his  option,  forego  the  performance  of  a  duty ;  be- 
cause to  omit  the  performance  of  a  duty  is  to  take  away  a 
right  somewhere,  either  in  society  or  an  individual,  the 
right  to  have  such  duty  performed.  Therefore  every  act 
done  in  exercise  of  a  right  is  a  voluntary  [optional]  act, 
and  every  act  done  in  the  performance  of  a  duty  is  an  in- 
voluntary [not  optional]  act.  One  may  in  fact  perform 
his  duties  willingly,  but  as  the  performance  or  non-per- 
formance is  not  optional,  and  may  be  enforced,  perform- 
ance is  properly  regarded  as  involuntary. 

§  40.  Rights  must  be  exercised  and  duties  must  be 


§§    41-43.]  RIGHTS    AND    DUTIES.  85 

performed  strictly  and  in  good  faith.  An  act  which  ex- 
ceeds the  prescribed  limits  of  a  right  is  not  the  exercise  of 
that  right,  and  an  act  which  falls  short  of  the  prescribed 
limits  of  a  duty  is  not  the  performance  of  that  duty. 

§  41.  Rights  and  duties  cannot  exist  in  the  absence  of 
a  supreme  power  somewhere,  which  protects  the  exercise 
of  the  one  and  enforces  the  performance  of  the  other ;  that 
supreme  power  is  called  a  law,  and  that  branch  of  it 
which  relates  to  the  rights  and  duties  of  individuals  in 
their  social  relations  constitutes  the  municipal  law.  In 
some  sense,  therefore,  it  is  proper  to  say  that  lights  and 
duties  are  the  results  of  laiu,  and  if  this  be  granted,  it 
must  follow  that  all  rights  and  duties  of  which  the  muni- 
cipal law  takes  cognizance  are  legal  rights  and  legal  duties. 
There  can  be  no  such  right  recognized  by  law  as  a  natural 
right.  A  right  anterior  to  or  independent  of  the  law  can 
be  a  right  only  of  superior  physical  power. 

§  42.  Every  act  must  be  done  either  in  the  exercise  of 
a  right  or  in  the  performance  of  a  duty,  or  neither  in  the 
exercise  of  a  right  nor  in  the  performance  of  a  duty ;  and 
every  act  must  be  either  such  as  the  law  permits  and  does 
not  punish  or  such  as  the  law  does  not  permit  and  will 
punish.  Every  act  done  in  the  exercise  of  a  right  or  in 
the  performance  of  a  duty  is  a  permitted  act.  Every  act 
done  neither  in  the  exercise  of  a  right  nor  the  performance 
of  a  duty  is  an  unpermitted  act.  Every  act  which  the 
law  permits  is  lawful,  and  every  act  which  the  law  does 
not  permit  is  unlawful. 

§  43.  A  lawful  act  cannot  amount  to  a  wrong,  but 
every  unlawful  act  is  a  wrong ;  and  as  every  act  must  be 
either  lawful  or  unlawful,  every  act  must  be  either  a 
wrong  or  not  a  wrong.  The  rule  that  for  every  wrong 
the  law  provides  a  remedy  holds  true  only  by  postulating 
that  only  that  act  is  a  wrong  for  which  the  law  provides 


86  RIGHTS    AND   DUTIES.  [Ch.    III. 

a  punishment  or  a  remedy.  The  rule  that  for  every 
wrong  the  law  provides  a  remedy  is  not  universally  true, 
because  sometimes  although  a  wrong  has  been  committed, 
the  subject  of  the  wrong  is  by  some  means  estopped  from 
claiming  any  redress.  The  formula  by  which  this  rule  is 
expressed  is,  that  one  cannot  take  advantage  of  his  own 
wrong.  An  act  may  be  such  as  not  to  be  obnoxious  to 
every  remedy,  but  if  it  is  obnoxious  to  any  remedy  it  is  a 
wrong. 

§  44.  Different  laws  prescribe  different  rules  of  right 
and  duty,  and  where  there  are  courts  of  different  jurisdic- 
tions that  may  be  a  wrong  in  one  jurisdiction  which  is  not 
a  wrong  in  another ;  as  where  there  are  civil  and  criminal 
courts,  and  as  in  England  where  there  are  common  law 
courts  and  ecclesiastical  courts.  "We  may  sometimes  de- 
termine of  any  act  whether  or  not  it  is  a  wrong  by 
inquiring  whether  or  not  the  law  provides  for  it  any 
remedy  or  punishment.  There  can  be  no  civil  right 
where  there  is  no  remedy.1  "  It  is  a  mockery  to  talk  of 
existing  rights  without  applying  corresponding  reme- 
dies." 2  If  there  is  no  remedy  we  conclude  there  is  no 
wrong — meaning,  of  course,  legal  wrong.  This,  it  must  be 
conceded,  is  an  illogical  and  inverse  method  of  arriving  at 
the  desired  conclusion,  but  we  find  it  oftentimes  resorted 
to,  as  the  best  attainable  standard  by  which  to  determine 
of  any  act  if  it  be  a  wrong.8 

§  45.  Wrongs  which  only  affect  society  in  general,  and, 
so  far  as  they  affect  society  in  general,  are  distinguished 
from  wrongs  affecting  only  individuals,  by  denominating 
them  crimes.  Hereafter  we  shall  invariably  use  the  term 
wrong  to  signify  an  act  injuriously  affecting  only  individ- 


1  B'k  of  U.  S.  v.  Owens,  2  Peters,  539. 

2  Fowler  v.  Lindsay,  3  Dallas,  413. 

3  "The  remedy  may  always  be  referred  to  as  illustrating  the  right  and  e  con- 
verso."    (Van  Rensselaer  v.  Jones,  2  Barb.  656.) 


§§  40,  47.]  wroxgs;    remedies.  87 

uals.  Wrongs  are  direct  or  indirect.  Direct  wrongs  are 
those  where  the  act  done  may  be  per  se  a  violation  of  a 
right — a  blow  is  of  this  character.  Indirect  wrongs  are 
those  where  the  act  done  cannot  be  per  se  a  violation  of  a 
right,  and  only  becomes  a  violation  of  a  right  by  reason  of 
some  consequence  resulting  from  that  act.  The  act  of 
publishing  language  is  of  this  character. 

§  46.  We  are  accustomed  to  describe  law  as  the  su- 
preme power  in  the  State,  commanding  what  is  right  and 
prohibiting  what  is  wrong ;  but  this,  besides  being  untrue,1 
does  not  aid  in  determining  what  is  a  legal  right  or  a  legal 
wrong.  So,  too,  a  wrong  is  correctly  enough  described, 
not  defined,  as  an  invasion  of  a  right,  but  unless  or  until 
we  know  what  is  a  right,  we  cannot  know  when  a  right 
has  been  invaded. 

§  47.  If  we  could  catalogue  rights,  and  distinguish 
each  by  an  intelligible  and  unvarying  definition,  we  should 
then  have  no  difficulty  in  ascertaining  when  a  wrong  has 
been  done.  But  the  nature  of  a  right  forbids  any  such 
proceeding.  We  do,  indeed,  find  text  writers  and  judges 
speaking  of  the  right  of  speech,  the  rights  of  the  press,  and 
the  right  of  property.  Blackstone,  and  others  following 
him,  state  that  the  absolute  natural  rights  are  the  rights  of 
life,  liberty  and  reputation.  Text  writers  also  speak  of 
relative  rights  and  tangible  rights,  but  all  these  are  mere 
words,  entirely  illusory,  capable  of  no  practical  applica- 
tion. The  utmost  that  can  be  derived  from  all  that  has 
ever  been  written  on  this  subject  is,  that  a  man  has  some 
rights  pertaining  to  his  person,  his  property  and  his  repu- 
tation ;  the  nature  of  a  right  is  nowhere  attempted  to  be 
defined  or  explained,  except  in  the  illogical  way  of  stating 
a  rule  with  a  multitude  of  exceptions,  leaving  us  in  doubt 

1  See,  Chisholm  v.  State  of  Georgb,  3  Peter'3  Cond.  Rep.  74. 


8S  EIGHTS   AND    DUTIES.  [Cll.  III. 

as  to  each  particular  case  which  arises  whether  it  comes 
within  the  rule,  or  is  one  of  the  exceptions. 

§  48.  While  denning  a  wrong  as  an  invasion,  meaning 
every  invasion  of  a  right,  text  writers  have  contented 
themselves  with  speaking  of  the  absolute  right  of  prop- 
erty, the  absolute  right  of  reputation,  etc.1  Now,  if  the 
words  "absolute  right  of  property"  have  any  meaning, 
they  must  mean  that  one  has  such  a  right  to  his  property 
that  no  one  may,  under  any  circumstances,  take  it  from 
him ;  and  if  this  be  so,  and  every  invasion  of  a  right  be  a 
wrong,  it  must  follow  that  every  deprivation  of  property 
is  a  wrong.  We  know  this  is  not  true ;  one  may  be  de- 
prived of  his  property  in  many  ways  without  a  wrong 


1  "  Bights  of  persons  are  divided  into  absolute  and  relative.  1  Ch.  PI.  137.  This 
classification  is  recognized  by  all  our  elementary  writers.  2  Kent's  Coin.  129  ;  3  Bl. 
Com.  138."  ( Delamater  v.  Russell,  4  How.  Pr.  R.  235.)  "The  character  of  individ- 
uals is  unquestionably  one  of  their  absolute  and  personal  rights.  It  is,  therefore,  un- 
necessary to  make  any  distinct  affirmation  that  the  protection  of  it  most  immediately 
falls  within  the  common  law.  Reputation,  indeed,  is  not  only  one  of  our  perfect 
rights,  but  that  which  alone  gives  a  value  to  all  our  other  rights."  (Holt  on  Libel, 
p.  15.)  "  The  security  of  his  reputation,  or  good  name,  from  the  arts  of  detraction 
and  slander  are  rights  to  which  every  man  is  entitled  by  reason  and  natural  ju- 
(1  Bl.  Com.  book  I,  ch.  i.)  "  The  use  of  the  law  consisteth  principally  in  these  three 
things  :  *  *  *  *  III.  For  preservation  of  men's  good  name  from  shame 
and  infamy."  Bacon's  The  Use  of  the  Law.  His  Lordship  says  nothing  further  OB 
the  subject  in  that  essay. 

Slander  or  libel  is  an  infringement  of  the  absolute  rights  of  persons,  (l'arker  J. 
Delamatei-  v.  Russell,  4  How.  Pr.  R.235.)  "Whether  reputation  be  by  the  law  of  nature 
one  of  the  absolute  rights  of  persons  or  not,  the  common  law  of  England  does  not  so 
consider  it.  The  law  of  unwritten  slander  is  incompatible  with  it,  and  in  part 
establishes  a  different  principle.  For  it  would  follow  fr<  m  that  principle,  and  ho 
evidently  means  by  it,  that  no  man  can  lawfully  say  or  publish  anything  to  the  dis- 
advantage of  another,  even  though  it  be  true,  and  he  is  prepared  to  prove  its  truth." 
(1  Mence  on  Libel,  132.)  Blackstone  and  others,  translating  persona,  person,  in-tea  1 
of  status  or  condition,  place  among  the  rights  of  persons  the  right  of  personal 
security,  the  reputation,  &c,  whereas  the  right  to  reputation  is  among  the  ri„- 
rem.  (Edinburgh  Review,  Oct.  1863,  p.  239,  Amer.  Reprint.)  The  riirht  which 
Blackstone  styles  the  right  of  reputation  is  original  or  innate  as  opposed  to  acquired. 
This  right  has  no  connection  with  a  natural  right  in  the  other  sense  of  th« 
Blackstone  has  confounded  them,  and,  supposing  the  right  of  reputation  to  belong  to 
the  law  of  persons,  has  called  it  an  absolute  right  of  persons.  (2  Austin's  Lect.  on 
Juris.  268,  476,  3  id.  179.) 


§  49.]  wrongs;  remedies.  89 

being  done.  A  man's  property  may  be  taken  from  him 
directly  for  public  use,  on  making  due  compensation,  or  it 
may  be  taken  from  liim  to  satisfy  bis  obligations,  and  it 
may  be  indirectly  taken  from  him  in  many  ways  by  acts 
subjecting  him  to  loss,  for  which  the  law  affords  him 
no  remedy.  So,  too,  if  the  supposed  right  to  reputation 
be  an  absolute  right,  then  every  invasion  of  it  must  be  a 
wrong ;  but  reputation  is  often  invaded  without  such  in- 
vasion amounting  to  "  a  wrong,"  hence  the  inutility,  for 
any  practical  purpose,  of  the  definition  of  a  wrong  as  an 
invasion  of  a  right.  The  truth  is,  that  a  man  has  the 
right  to  the  uninterrupted  enjoyment  of  his  property  to 
such  an  extent  only,  and  subject  to  such  conditions,  as  the 
general  welfare  of  the  community  demands,  and  so  of  rep- 
utation. It  must  be,  therefore,  that  instead  of  saying  of 
one  he  has  an  absolute  right  to  property  or  reputation,  we 
should  say  he  has  a  right  thus  and  so,  describing  it  with 
such  limitation  and  qualification  as  will  make  it  true  that 
every  interference  by  another  with  such  an  enjoyment  of 
it  will  amount  to  a  wrong.  This  may  be  difficult,  or  it 
may  be  impossible ;  if  the  latter,  as  we  conceive  it  to  be,1 
let  the  attempt  be  abandoned,  but  it  furnishes  no  reason 
for  describing  that  as  an  absolute  right  which  is  some- 
thing else.  "  It  is  difficult  to  say  when  night  ends  or  day 
begins,  or  to  draw  the  line  between  them,  yet  day  and 
night  are  not  the  same  thing.''2 

§  49.  It  is  not  so  proper  to  say  that  the  law  prescribes 
what  is  rightj  and  prohibits  what  is  wrong  as  to  say  that 
law  determines  rights  by  prescribing  duties,  and  inde- 
pendently of  any  positive  enactment,  all  legal  duties  are 

1  "  The  time  is  passed  when  *  *  it  was  believed  that  everything  was 
strictly  definable,  and  must  be  compressed  within  the  narrow  limits  of  an  absolute 
definition  before  it  could  be  entitled  to  the  dignity  of  a  thorough  discussion.  The 
hope  of  being  able  absolutely  to  define  things  *  *  betrays  a  misconception 
of  human  language,  which,  itself,  is  never  absolute  except  in  mathematics.  It  mis- 
leads."    (Lieber's  Civil  Liberty,  23.) 

3  Att'y-Gen'l  v.  Daken,  Law.  Rep.  II  Ex.  295. 
1 


90  eights  ;    DUTIES.  [Ch.  III. 

comprised  in  this  one  prohibition.  N~o  one  shall,  without 
a  legal  excuse,  do  or  forbear  any  act,  by  which  doing  or 
forbearing  there  results  a  breach  of  the  peace,  injury  to  the 
community,  or  damage  to  the  person  or  property  of  another. 

§  50.  What  determines  of  any  given  act  whether  or 
not  it  is  permitted,  i.  <?.,  lawful ;  or  unpermitted,  i.  e.,  un- 
lawful ;  whether  there  is  or  is  not  a  legal  excuse  for  the 
doing  such  acts,  is  the  occasion  upon  which  it  is  enacted.1 
The  occasion  being  the  entire  group  of  circumstances  sur- 
rounding the  act,  including  the  actor,  the  patient  or  per- 
son acted  upon,  the  kind  of  act,  the  manner  of  effecting 
the  act,  the  motive  of  the  actor,  and  the  consequences  of 
the  act.  It  is  the  occasion  to  which  we  must,  in  eveiy  in- 
stance, refer  to  ascertain  whether  there  was  or  was  not  a 
legal  excuse  for  the  act.  Everything  considered,  was  the 
act  lawful  or  unlawful  ?  Was  it  in  exercise  of  a  right  or 
performance  of  a  duty  \  As  it  is  manifestly  impossible  to 
preconceive  or  anticipate  every  possible  group  of  circum- 
stances, so  necessarily  it  is  impossible  to  catalogue  rights 
and  duties — that  is,  to  catalogue  the  acts  which  may  or 
may  not  be  done  or  forborne. 

§  51.  The  impossibility  of  framing  such  a  definition  of 
a  right  or  of  a  duty  as  shall  enable  us  to  say  of  any  partic- 
ular act  by  itself,  that  it  is  lawful  or  unlawful,  is  evident. 
The  utmost  we  can  do  is  to  say  that  an  act  done  under  a 
certain  given  state  of  circumstances  is  a  permitted  act,  one 
the  actor  had  the  right  to  do,  or  that  it  is  an  unpermitted 
act,  one  the  actor  had  not  the  rigid  to  do — that  is,  the  do- 
ing of  which  it  was  his  duty  to  forbear. 

§  52.  The  law,  besides  prescribing  duties,  provides  the 
means  called  remedies  for  protecting  rights  and  redressing 
wrongs.  It  will,  in  some  cases,  interpose  by  injunction  to 
prevent  the  perpetration  of  a  wrong,  but,   as  a  general 

1  Hosmer  v.  Lovelaml,  19  Barb.  115. 


§  53.] 


WRONGS;    REMEDIES.  91 


rule,  the  pul  >lication  of  an  alleged  libel  will  not  be  stayed 
by  injunction.1 

§  53.  The  ordinary  mode  of  remedying  a  wrong  is  by 
an  action.     Actions  were  anciently  commenced  by  original 


1  The  court  of  star  chamber,  which  Lord  Campbell  described  as  a  court  of 
criminal  equity  (Emperor  of  Austria  v.  Day,  7  Jur.  N.  S.  483),  and  which  description 
was  quoted  with  approval  by  Chief  Baron  Pollock  (The  Alexandria,  MS.),  was  in 
the  habit  of  restraining  the  publication  of  certain  libels  (Hudson's  Star  Chamber). 
After  the  abolition  of  that  court,  Chief  Justice  Scroggs,  and  the  other  judges  of  the 
King's  Bench,  prohibited  the  publication  of  a  periodical  called  "The  Weekly  Packet 
of  Advice  from  Rome  ;  or,  the  History  of  Popery."  For  this,  Scroggs  was  impeached 
(8  Howell's  State  Trials,  198).  In  Du  Bost  v.  Beresford,  2  Camp.  Rep.  511,  Lord 
Ellenborough  said  the  exhibition  of  a  libelous  painting  might  be  restrained  by  in- 
junction. That  was  an  obiter  dictum,  and  is  said  to  have  excited  great  astonishment 
in  the  minds  of  all  the  practitioners  in  the  courts  of  equity  in  England.  (Home's 
case,  20  Howell's  State  Trials,  799  note;  10  Campbell's  Lives  of  the  Chancellors,  ch. 
ccxiii.)  In  Burnett  v  Chetwood,  2  Merivale's  Rep.  441,  note,  Lord  Chancellor  Parker 
granted  an  injunction  to  restrain  the  publication  of  a  translation  of  a  book  from  Latin 
into  English,  on  the  ground  that  the  book  in  English  might  have  a  hurtful  public 
tendency  not  likely  to  occur  while  the  matter  remained  in  Latin.  In  Brandreth  v. 
Lance,  8  t'aige,  24,  the  chancellor,  on  demurrer  to  a  bill  jiraying  an  injunction  to 
restrain  the  publication  of  a  libelous  pamphlet,  dismissed  the  bill  on  the  ground  that 
the  court  had  no  jurisdiction  to  interfere,  no  right  to  "  literary  or  medical  property" 
being  invaded  ;  and  see  Hoyt  v.  McKenzie,  3  Barb.  Ch.  R.  320.  In  Clarke  v.  Free- 
man, 11  Beavan,  112;  12  Jurist,  149;  17  Law  Jour.  Rep.  Ch.  142,  the  plaintiff,  a 
physician,  applied  for  an  injunction  to  restrain  the  defendant  from,  among  other  things, 
publishing  an  advertisement  so  expressed  as  to  raise  the  inference  that  certain  pills 
sold  by  defendant  were  sold  by  him  on  behalf  of  the  plaintiff.  The  court  held  the 
advertisement  in  question  amounted  to  a  libel  on  the  plaintiff,  and  dismissed  the 
bill ;  because,  to  grant  the  injunction,  "  would  imply  that  the  court  has  jurisdiction 
to  stay  the  publication  of  a  libel,  and  I  cannot  think  it  has."  This  case  is  questioned 
in  supplement  to  Drewry  on  Injunctions,  34,  but  not  on  the  ground  that  the  court 
had  jurisdiction  to  restrain  the  publication  of  a  libel ;  and  Clarke  v.  Freeman  is  also 
questioned  in  Springhead  Spinning  Co.  v.  Riley;  and  Dixon  v.  Holden,  infra;  and 
in  Maxwell  v.  Hogg,  Law  Rep.  II  Eq.  310. 

A.  person,  whose  name  was  on  the  register  of  persons  whose  notes  had  been  pro- 
tested,  applied  to  the  Court  of  Session,  in  Scotland,  for  an  interim  interdict  to  prevent, 
so  far  as  his  own  name  was  concerned,  the  publication  of  a  copy  of  the  register.  The 
court  decreed  for  the  application.  Held,  by  the  Lords,  reversing  that  decree,  that 
the  interdict  ought  not  to  have  been  granted.  (Fleming  v.  Newton,  1  Ho.  of  Lords, 
Cas.  363.)  "  The  king  has  no  authority  to  restrain  the  press."  (Mansfield,  Ch.  J., 
Stationers'  Co.  v.  Partridge.)  An  injunction  was  granted  against  the  publication  of  a 
notice  stating  that  the  plaintiff,  a  merchant,  was  a  partner  in  a  bankrupt  firm  (Dixon 
v  Holden,  Law  Rep.  VII  Eq.  488;  see  also  Springhead  Spinning  Co.  v.  Riley,  Law 
Rep.  VI  Eq.  551 ).  In  an  unreported  case  (Meserole  v.  Goldsmith)  decided  January, 
1870,  in  New  York,  Justice  Ingraham  interdicted  the  publication  of  a  circular  pur- 
porting to  be  the  report  of  a  trial  relative  to  a  patent  right  for  paper-collars.     There 


92  EIGHTS ;    DUTIES.  [Cll.  III. 

writ.1  These  writs  differed  from  each  other  according  to 
the  nature  of  the  wrong  to  be  redressed.  These  write 
were  preserved  in  the  Chancery  in  The  Register  of  Writs, 
which  register  was  printed  and  published  in  the  reign  of 


is  now  pending  in  the  Superior  Court  of  New  York,  Hovey  v.  Rubber  Tip  Pencil  Co., 
an  action  to  restrain  tbe  publication  of  a  circular  affecting  plaintiffs  business.  As  to 
courts  restraining  reports  of  their  proceedings,  see  post  note  to  ^  231.  In  Missouri, 
in  the  case  of  Millier  v.  Shepherd,  now  pending,  an  injunction  was  granted  restrain, 
ing  the  publication  of  "  Bradstreet's  Commercial  Report,"  a  mercantile  agency  report, 
and  containing  matter  affecting  the  credit  and  standing  of  the  plaintiff  as  a  mer- 
chant. In  Dixon  v.  Holden,  supra,  Malins,  V.-C,  says :  "I  go  further,  and  say  if  it 
[the  publication  sought  to  be  restrained]  had  only  injured  his  [plaintiffs]  reputation, 
it  is  within  the  jurisdiction  of  this  court  to  stop  the  publication  of  a  libel  of  this 
description,  which  goes  to  destroy  his  [plaintiff's]  property,  or  his  reputation,  which 
is  his  property,  and,  if  possible,  more  valuable  than  any  other  property.  In  this 
case,  I  go  on  general  principle,  and  I  am  fortified  by  authority.  General  principle  is 
in  its  favor,  but  authority  is  not  wanting.  *  *  *  In  the  decision  I  ar- 
rived at,  I  beg  to  be  understood  as  laying  down  that  this  court  has  jurisdiction  to 
prevent  the  publication  of  any  letter,  advertisement,  or  other  document,  which,  if 
permitted  to  go  on,  would  have  the  effect  of  destroying  the  property  of  another  per- 
son, whether  that  consists  of  tangible  or  intangible  property,  whether  it  consists  of 
money  or  reputation.  Professional  reputation  is  the  means  of  acquiring  wealth,  and 
is  the  same  as  wealth  itself."  In  deciding  Brandreth  v.  Lance  (supra),  the  Chancel- 
lor referred  to  2  R.  S.  737,  s.  1,  pt.  IV,  ch.  xi,  tit.  6,  art.  1.  This  section  confers  on 
courts  the  power  to  bind  persons  to  give  security  to  keep  the  peace  in  certain  cases, 
and  its  last  clause  reads  thus :  "  This  section  shall  not  extend  to  convictions  for 
writing  or  publishing  any  libel,  nor  shall  any  such  security  be  hereafter  required,  by 
any  court  upon  any  complaint,  prosecution,  or  conviction  for  any  such  writing  or 
publishing."  The  revisers,  in  their  note  to  that  section,  say,  in  reference  to  the 
above-recited  clause,  that  it  is  7ieu;  and  "  it  is  conceived  that  this  provision  virtually 
takes  away  from  the  courts  the  common  law  power  of  binding  over  a  party  guilty  of 
publishing  a  libel."  As  to  the  common  law  power  of  binding  to  good  behavior,  see 
Hawkins'  Pleas  Cr.,  ch.  lxi,  and  Viner's  Abridgment,  tit. — Good  behavior ;  Highmore 
on  Bail,  248.  By  Laws  of  1860,  ch  cviii,  §  20,  p.  1007,  every  person  in  the  city  of 
New  York  shall  be  deemed  guilty  of  disorderly  conduct  "  who  shall  use  any  threat- 
ening, abusive,  or  insulting  behavior  with  intent  to  provoke  a  breach  of  the  peace." 
The  courts  interfere  by  injunction  to  restrain  the  publication  of  letters  written  by  a 
party  or  his  testator  to  the  defendant  or  others.  (2  Story's  Eq.  Juris.  §§  '.'43  to  949  ; 
"Woolsey  v.  Judd,  11  How.  Prac.  Rep.  49;  4  Duer,  379;  Resp.  v.  Duane,  1  Binney, 
98;  2  Stark.  Slan.  268,  note  1.) 

1  One  of  the  earliest  refinements  in  forensic  science  was  that  of  classifying  the 
various  subjects  of  htigation,  and  allotting  to  each  class  an  appropriate  formula  of 
complaint  or  claim.  Such  was  the  practice  in  ancient  Rome  almost  as  early  as  the 
law  of  the  twelve  tables,  and  continued  until  the  time  of  Constautine,  who  abolished 
the  judicial  formula;.  These  for mid a  in  the  English  law  were  called  writs.  How,  or 
when,  or  whence  introduced  into  England  is  undetermined.  (Stephens'  PL  ch.  i,  and 
id.  appendix,  note  2.) 


§  54.]  wrongs;  remedies.  93 

Henry  VIII  of  England.1  The  most  ancient  writs  provided 
for  the  most  obvious  kinds  of  wrongs,  as  nuisance,  waste, 
trespass,  &c. ;  but  in  the  progress  of  society,  it  seems  that 
cases  of  injury  arose  new  in  their  circumstances,  and  not 
within  any  of  the  writs  then  known,  and  that  the  power 
to  issue  writs  of  a  new  kind  was  conceived  not  to  exist 
without  the  authority  of  the  .  Parliament ;  accordingly,  by 
the  statute  of  the  13  Edward  I,  chap,  xxiv,  called  the 
statute  of  Westminster  the  lid  (say  A.  D.  1285),  it  was 
provided  "  That  as  often  as  it  shall  happen  in  the  chan- 
cery, that  in  one  case  a  writ  is  found,  and  in  a  like  case 
(in  consimilu  casii)  falling  under  the  same  right,  and  re- 
quiring like  remedy,  no  writ  is  to  be  found,  the  clerks  in 
the  chancery  shall  agree  in  making  a  writ,"  &c.  Under  the 
sanction  of  this  act,  large  accessions  were  made  to  the  exist- 
ing stock  of  original  writs.2  These  new  writs  were  said 
to  be  issued  upon  the  case,  and  the  actions  commenced  by 
them  were  designated  actions  upon  the  case,  or  actions  of 
trespass  on  the  case.  Among  this  class  was  the  action  of 
trespass  on  the  case  for  words — the  ancient  fomi  of  the 
action — now  known  as  the  action  of  slander  or  libel,  and 
which  is  the  only  civil  remedy  for  slander  and  libel. 

§  54.  The  consideration  of  the  course  of  procedure  in 
an  action  pertains  more  properly  to  a  subsequent  stage  of 
our  inquiry.  We  will  here  merely  remark  that  the  rules 
by  which  we  determine  when  a  wrong  has  been  commit- 
ted, and  the  rules  of  pleading,  of  evidence  and  of  practice, 
although  they  have  a  certain  inter-dependence,  are  in  fact, 


14  Reeve's  Hist.  426,  432.  Original  writs  were  abolished  in  England  by  statute. 
(2  Will.  IV,  ch.  xxxix.) 

2  Although  the  new  writs  were  to  be  framed  only  in  consimilu  casu,  "  many  writs 
were  framed  for  various  kinds  of  trespasses  unknown  in  former  ages."  (Sullivan's 
Lectures,  Lect.  83  ;  Stephens'  PI.  7.)  The  first  reported  action  of  trespass  on  the 
case  is  said  to  be  found  22  Edw.  Ill,  Ass.  41.  (Reeve's  Hist.)  That  would  be  A.  D. 
1349.  We  have  not  verified  this  statement,  and  doubt  its  correctness.  The  action 
on  the  case  has  its  counterpart  in  the  actio  utilis  of  the  Roman  Law.  (See  2  Austin's 
Lect.  Jur.  303.) 


94:  WRONGS  ;    EE3IEDIES. 

and.  if  we  would  avoid  confusion,  must  ever  be  regarded 
as  separate  and  distinct  rules.  Preliminary  to  attempting 
an  analysis  of  the  wrongs,  slander  and  libel,  we  shall  in 
our  next  chapter  consider  what  is  the  gist  of  the  action 
for  slander  or  libel. 


CHAPTER    IV. 

» 

WHAT    IS    THE    GIST    OF   THE    ACTION    FOR  SLANDER  OR    LIBEL. 

History  Silent  as  to  the  Introduction  of  the  Action  for 
Slander — Hypothesis  Necessary — How  the  Law  Pro- 
tects Reputation — Fiction — Pecuniary  Loss  the  Gist 
of  the  Actions  for  Slander  and  Libel. 

§55.  It  is  not  known  with  certainty,  or,  rather,  all  are 
not  agreed,  either  as  to  the  origin  of  the  remedy  by  action 
for  slander  or  libel,  or  as  to  the  gist  of  such  an  action,  and 
neither  histoiy  nor  judicial  decision  furnishes  any  satisfac- 
tory solution  of  these  doubts.  We  know,  indeed,  that  all 
nations  have  recognized  the  capacity  for  injury  inherent  in 
language,  and  have  provided  some  means  for  punishing 
offences  arising  from  an  abuse  of  the  gift  of  speech ;  but 
we  seek  in  vain  among  these  laws  for  a  clew  to  the  prin- 
ciples by  which  at  this  day  we  may  determine  when  a 
wrong  by  slander  or  libel  has  been  occasioned,  and  when 
we  may  properly  invoke  the  remedy,  by  action  for  slander 
or  libel.1     As  the  action  of  trespass  on  the  case  owed  its 


2  After  a  reference  to  all  available  authorities  on  the  subject  of  the  ancient  laws 
against  offences  by  language,  and  preparing  a  lengthy  note  on  the  subject,  we  con- 
clude that  however  interesting  as  history,  its  publication  here  would  not  advance  the 
object  of  this  essay.  The  curious  student  may  refer  to  Holt  on  Libel,  cb,  i,  voL  H.;  1 
Mence  on  Libel,  ch.  viii,  ix ;  Starkie  on  Slander,  3  Johns.  Cas.  382 ;  Wilkins'  Leg. 
Anglo-Sax. ;  Lambard's  Saxon  Laws ;  Nicholson's  Prefat.  ad  Leg.  ADglo-Sax. ;  Stiern- 
hook  De  Jure  Vetusto  Suconum  et  Gothoruru  ;  Tacitus'  De  Mor.  Germ.  ;  Saltern  De 
Antiq.  Leg.  Brit.;  Dugdale's  Origines  Juridicales;  Disney's  Ancient  Laws  against 
Immoralities;  Gurdon's  History  of  Court  Baron  and  Court  Leet;  Petit's  Leges  At- 
ticae;  Johnson's  Institutes  of  the  Civil  Law  of  Spain  ;  Michaelis'  Com.  on  the  Law  of 
Moses,  Smith's  Translation;  The  English  Statutes,  3  Edw.  I;  2  Rich.  II;  1  Phil, 
and  Mary;  1  Eliz. ;  the  publications  of  the  English  Record  Commissioners;  Pitcairn's 
Criminal  Trials  in  Scotland.     For  seventeenth  century  ideas  of  the  law  of  libel  in 


96  GIST   OF   ACTION.  [Ch.  IV. 

origin  to  the  provisions  of  the  statute,  13  Edward  I,  A.  D. 
1285,  it  seems  necessarily  to  follow  that  the  action  of  tres- 
pass on  the  case  for  words  must  date  its  origin  at  some 
period  subsequent  to  that  statute ; 1  but  it  does  not  thence 
follow  that  anterior  to  the  introduction  of  the  action  of 
trespass  on  the  case  for  words,  there  existed,  in  England 
no  remedy  for  wrongs  by  language.  We  know  that  for 
centuries  prior  to  the  statute  of  13  Edward  I,  offences 
which  we  at  this  day  designate  slander  and  libel  were 
recognized  and  punished ;  but  of  the  time  and  manner  of 
introducing  the  remedy  by  action  of  trespass  on  the  case 
for  words  we  know  absolutely  nothing.  The  reported 
decisions  in  the  courts  of  law  in  England,  printed  and  in 
manuscript,  reach  back  at  least  as  far  as  A.  D.  1216,  but 
we  find  in  those  reports  no  reference  to  an  action  for 
words  earlier  than  A.  D.  1321.3  That  decision  merely 
serves  to  inform  us  that  at  that  time  existed  the  struggle 
for  jurisdiction  which  probably  commenced  on  the  division 
of  the  courts  into  courts  temporal  and  courts  ecclesiastical, 
and  which  continued  certainly  until  after  the  reign  of  the 
first  James  of  England. 

§  56.  Since,  then,  we  can  obtain  no  positive  informa- 
tion on  the  subject  of  our  inquiry,  we  are  driven  to  hypo- 
thesis.    Our  mnvritten  law  is  based  on  the  so-called  corn- 


Massachusetts,  see  Sketches  of  the  Judicial  History  of  Massachusetts;  and  among 
the  Dutch  in  New  York,  see  Valentine's  Manual  of  Common  Council  for  1849,  p.  402, 
421.  and  under  English  rule :  Valentine's  Manual  for  1847,  p.  359 ;  and  Thomas'  Hist, 
of  Printing  in  America.     And  see  List  of  Authors  following  Tahle  of  Cases,  ante. 

1  Section  53,  ante  and  note  2,  p.  93,  ante,  Mr.  Pomeroy,  in  his  introduction  to  Municipal 
Law,  says,  §  199:  That  before  the  statute  "there  was  absolutely  no  provision  for  a 
vast  majority  of  the  legal  rights  *  *  which  are  now  the  most  common  and  im- 
portant." And  §  201 :  The  effect  of  the  statute  "  was  to  extend  this  action  to  cases 
where  the  injury  was  consequential  or  indirect." 

a  That  case  is  in  the  year  book  of  Edward  II  (Hil.  14  Edw.  II,  p.  416);  it  was  an 
attachment  upon  a  prohibition  against  proceeding  in  a  court  Christian  for  defamatory 
words.  There  is  nothing  in  the  report  to  indicate  that  it  was  a  novel  proceeding. 
March,  in  his  Treatise  on  Slander,  says  he  could  find  no  action  for  scandalous  words 
before  Edward  the  Third's  time,  and  only  one  such  action  during  fifty  years  of  that 


§    56.]  GIST    OF    ACTION".  97 

mon  law  of  England,  and  whatever  the  number  of  sources 
which  contributed  to  make  up  that  complex,  vaguely  un- 
derstood and  imperfectly  ascertained  set  of  legal  ideas 
denominated  the  common  law  of  England,  it  is  certain 
that  so  much  of  it  as  pertains  to  the  rights  of  persons  is 
mainly  derived  from  the  Anglo-Saxon  and  Roman  civil 
laws.  Of  both  of  those  systems  of  laws  history  furnishes 
us  ample  details.  We  know  that  Rome  held  possession  of 
Britain  from  about  the  end  of  the  first  half  century  of  the 
Christian  era  to  about  the  middle  of  the  fifth  century  (say 
from  A.  D.  45  to  A.  D.  448),  and  during  this  period  Roman 
civil  law  was  administered  in  England.  When  the  Romans 
abandoned  Britain  the  Saxons  became  its  masters,  and, 
alternately  with  the  Danes,  so  continued  until  the  Norman 
conquest  (A.  D.  1066).  The  Saxons  introduced  their  own 
system  of  laws.  The  controlling  idea  of  those  laws  was 
the  maintenance  of  the  peace  and  protecting  the  person 
and  property.  They  did  not,  nor  does  the  law  at  this 
day,  give  directly  any  remedy  for  outraged  feelings  or  sen- 
timents.1    With  few  exceptions,  these  laws  designed  to 

King's  reign ;  three  such  actions  during  the  reign  of  Edward  the  Fourth  ;  not  one  in 
the  reign  of  Henry  the  Seventh  ;  and  only  five  in  thirty-eight  years  of  the  reign  of 
Henry  the  Eighth.  At  p.  5  he  says:  Actions  for  scandal  are  amongst  the  most 
ancient  in  the  law. 

1  See  Tilley  v.  Hudson  R.  R.  Co.,  23  How.  Pr.  R.  370;  Green  v.  Hudson  R.  R.  Co., 
32  Barb.  25 ;  Lehman  v.  City  of  Brooklyn,  29  Barb.  234 ;  Flemington  v.  Smithers,  2 
C.  &  P.  (K  P.)  292;  Terwilliger  v.  Wands,  17  N.  Y.  54;  Wilson  v.  Goit,  17  K  Y. 
442;  Bedell  v.  Powell,  13  Barb.  183;  the  cases  to  the  contrary  were  overruled. 
Mence,  commenting  on  the  statement  of  Holt,  that  the  few  actions  for  slander  to  be 
found  in  the  earlier  law  reports  was  creditable  to  the  people  of  those  times,  remarks 
that  the  credit  was  not  due  to  the  good  manners  but  to  the  fact  that  "  the  common 
law  took  cognizance  only  of  injuries  to  the  person  and  property."  (1  Mence  on  Libel, 
333.)  Perhaps  among  the  reasons  why  there  were  so  few  actions  for  slander,  one 
may  be  that  the  parties  themselves  undertook  to  redress  the  injury  without  resorting 
to  the  law.  When  King  Harold  required  of  Reidar,  the  Icelander,  a  blood  fine  for 
killing  one  of  his  (Harold's)  followers,  Reidar  refused  to  pay  it,  because  the  man 
brought  his  deatli  upon  himself,  by  behaving  rudely  to  him.  See  Den  Danske  Ero- 
bring  of  England  og  Normandict;  Copenhagen,  18G3.  In  Baker  v.  Pierce  (2  L'd 
Raym.  960),  Holt,  Ch.  •!.,  said  he  remembered  a  story  told  by  Mr.  Justice  Twisden,  of 
a  man  who  had  brought  an  action  for  slander,  who,  on  judgment  beim;-  given  against 
him,  said  if  he  had  thought  lie  should  not  have  recovered  he  would  have  cut  the  de- 


98  gist  OF  ACTIOX.  [CL  IV. 

remedy  every  wrong  by  a  pecuniary  mulct  or  fine  (were) * 
proportioned  and  adjusted  to  the  kind  and  degree  of  the 
wrono1  committed.  In  that  form  of  trial  which  corre- 
sponded  to  our  present  jury  trial,  the  question  in  Saxon 
times  was  only  the  guilt  or  innocence  of  the  accused.2 
The  penalty  (the  damages)  was  fixed  by  the  codes.  At  a 
later  period,  after  the  Norman  Invasion,  and  when  the 
Anglo-Saxon  codes  had  been  lost  by  desuetude,  the  courts 
fixed  the  amount  of  damages  ;  this  power,  when  jury  trials 
assumed  their  present  phase,  appears  to  have  been  trans- 
ferred by  the  court  to  the  jury — the  court,  however,  retain- 
ing its  power  to  regulate  the  damages.8  For  ages  the 
courts  always  revised  the  allowance  by  the  jury  of  dam- 
ages, and  the  power  is  still  held   and  exercised  by  the 

fendant's  throat.  The  Jesuits  sanctioned  killing  for  slander,  particularly  for  slander 
of  one  in  religious  orders,  but  they  held  that  the  killing  should  be  secret,  and  not 
open,  to  create  scandal.  (Pascal  Letters,  xiii.)  In  the  "  Ethica  Christiana/'  by  Father 
Benedict  Stattler,  published  in  1789,  it  is  stated,  paragraphs  1889,  1891,  and  1892, 
that  a  Christian  may,  to  prevent  a  "  contumelia  gravis  certo  provisa  *  *  *  * 
aut  calurania"  *  *  *  murder  the  "  injusti  aggresoris  aut  calumniatoris."  Father 
Stattler's  book  was  published  "  cum  permissu  superiorum,"  and  is  said  to  be  still  in 
use  as  a  manual  for  ecclesiastics. 

The  necessity  of  protecting  character  by  law  could  not  obtrude  itself  till  society 
had  begun  to  assume  a  complicated  form.  (Borthwick  on  Libel,  1.)  The  coarseness 
of  language  indulged  in. formerly  must  strike  every  student  of  history.  Henry  III 
(A.  D.  1248)  spoke  of  the  Aldermen  of  London  as  "London  boors,"  applied  alike 
epithet  to  the  Bishop  of  Ely,  and  dismissed  Bishop  Aymer  by  telling  him  to  go  to 
the  devil.     See  Miracles  of  Simon  de  Montfort  and  works  of  Roger  Bacon. 

1  Damages  correspond  to  the  Anglo-Saxon  were :  1  Palgrave's  Rise,  d:c.,  Eng. 
Commonwealth,  205;  Bosworth's  Anglo-Saxon  Diet.,  tit.  Were  and  Wite  ;  2  Lappen- 
burg's  History  of  England  (Thorp's  Translation),  336. 

2  As  to  the  origin  of  trial  by  jury,  <fcc,  see  Forsyth's  Hist,  of  Trial  by  Jury,  and 
Stephen's  PI.  Appendix,  note  40;  2  Reeves'  Hist.  270;  Fortescue  de  Laudibus  Legum 
Anglise,  ch.  xxv,  xxvi,  xxvii,  and  notes  to  the  edition  by  Amos ;  2  Hallam's  Middle 
Ages,  388-406,  note,  11th  edit. ;  Palgrave's  English  Commonwealth,  272. 

3  See  Viner's  Abr.,  tit.  Damages — J.  K.  L.  M.,  as  to  powers  of  courts  to  in- 
crease or  mitigate  damages.  The  right  was  denied  in  an  action  for  slander,  because 
there  is  in  such  an  action  nothing  apparent  for  the  judgment  of  the  court  to  act  upon. 
Id.  K.  See  Cassin  v.  Delany,  38  N.  Y.  178;  but  in  Gostling  v.  Brooks,  2  F.  A  F.  76. 
the  court  in  bauk  upheld  the  verdict  for  the  plaintiff,  but  reduced  the  amount  of  dam- 
ages. The  damages  increased  for  giving  plaintiff  bad  food  to  eat.  (1  Rolle,  89.)  And 
in  cases  of  maihem.  See  Jacobs'  Law  Diet.,  tit.  Maihem.  Rolle  Ab.,  tit.  Damages ; 
2  Sharswood's  Blackstone's  Comm.,  121  note. 


§    56.]  GIST   OF   ACTION.  99 

courts,  although  at  the  present  time  it  is  customary  to 
make  the  revision  by  granting  a  new  trial.  Even  now 
the  courts  not  unfrequently  order  a  reduction  of  damages, 
or  a  new  trial,  at  the  election  of  the  party  to  whom  dam- 
ages have  been  awarded.  The  Anglo-Saxon1  codes  pro- 
vide for  offences  occasioned  by  language,  but  they  are  all 
offences  which  amount  to  public  wrongs  or  crimes,  sedition, 
or  treason,  rather  than  private  wrongs  or  torts.  These 
codes  are  in  fact  barren  of  any  provision  of  a  pecuniary 
fine  or  penalty  for  a  private  injury  by  language.  While 
the  Saxons  were  yet  dominant  in  Britain,  Christianity, 
which  had  been  early  introduced  into  England  and  become 
extinct,  was  reintroduced  through  the  Church  of  Rome — 
say  A.  D.  596.  The  introduction  of  Christianity  did  not 
abrogate  the  Saxon  laws,  but  it  at  least  supplemented 
upon  them  many  precepts  of  Christianity,  and,  beyond  a 
doubt,  laid  the  foundation  for  the  dictum  that  Christianity 
is  part  of  the  common  law  of  England.2     The  clergy  rose 

1  Sir  Francis  Palgrave,  in  his  "History  of  Normandy  and  of  England,"  which  un- 
happily he  was  not  spared  to  complete,  objects  to  the  term  Anglo-Saxon  as  a  designa- 
tion of  the  English  of  the  ante-Norman  period.  He  denies  there  was  any  Anglo- 
Saxon  people  or  language,  properly  so-called,  and  says :  "  If  you  had  asked  Alfred 
what  he  had  in  his  hand,  he  would  have  answered  it  was  an  Engliscboc  *  *  * 
The  name  of  our  nation  then,  as  now,  was  English."  (Vol.  Ill,  p.  631,  edit.  1864.) 
Mr.  Palgrave  himself  employs  the  term  Anglo-Saxon  in  his  earlier  works. 

a  We  do  not  intend  to  assert  that  Christianity  is  parcel  of  the  English  common 
law.  Sir  Matthew  Hale,  in  Rex  v.  Taylor  (Ventris,  293 ;  3  Keble,  621 ;  Tremayne's 
Pleas  of  the  Crown,  226;)  following  Lord  Coke,  uttered  a  dictum  that  "  Christianity 
is  part  of  the  laws  of  England."  That  dictum  has  been  repeated  in  subsequent  cases. 
See,  among  others,  Rex  v.  Webster,  Fitzg.  64 ;  2  Str.  834 ;  Reg.  v.  Gathercole,  2 
Lewin  C.  C  237 ;  Reg.  v.  Hetherington,  5  Jur.  529,  Q.  B. ;  Rex  v.  Paine,  1  East  P.  C. 
5;  Lindenmuller  v.  The  People,  33  Barb.  54S ;  Bedford  Charity,  2  Swans.  52*7;  Da 
Costa  v.  Paz,  2  Swans.  420  n. ;  Att'y-Gen'l  v.  Pearson,  3  Mer.  399  ;  Andrew  v.  N.  Y. 
Bible  &  Prayer  Book  Soc,  4  Sandf.  157;  1  Bish.  Cr.  Law,  §  945,  947  ;  2  Id.  §  87. 
Jefferson,  in  a  letter  to  Major  Cartwright,  controverts  the  dictum  that  Christianity  is  a 
part  of  the  common  law.  This  letter  is  commented  upon  in  the  Inaugural  Discourse 
delivered  by  Joseph  Story  on  taking  the  chair  of  Dane  Professor  at  Harvard  Univer- 
sity, and  in  an  article  in  9  American  Jurist,  and  see  Life  and  Letters  of  Joseph  Story, 
vol.  I,  pp.  430^134;  vol.  II,  pp.  8,  462,  463;  and  on  this  subject  see  the  arguments  of 
Webster  and  Sergeant  in  the  Girard  will  case ;  and  Lewis  on  Authority  in  Matters  of 
Opinion.  Holt  says  Alfred  made  Christianity  part  and  parcel  of  the  common  law. 
(Holt  on  Libel,  32.)     See  strictures  on  this  dictum,  1  Mence  on  Libel,  303. 


100  GIST    OF    ACTION.  [Ch.  IV. 

to  great  power  in  the  State,  they  sat  in  the  courts  of  jus- 
tice, and  took  part  in  the  decision  of  all  judicial  controver- 
sies, and  they  claimed  and  exercised  a  sole  jurisdiction 
over  all  questions  involving  considerations  of  moral  right 
and  wrong  (sins),  rather  than  considerations  of  legal  rights 
or  rights  of  property ;  those  rights  in  fact  which  were  pro- 
vided for  by  the  letter  of  the  laws.  The  jurisdiction  thus 
claimed  and  exercised  included  heresy,  adultery,  perjury, 
and  defamation.  This  jurisdiction  was  assumed  and  exer- 
cised with  the  avowed  design  not  of  compensating  the  in- 
jured party,  but  for  the  reformation  of  the  offender. 
Reparation  in  damages  was  made  only  in  the  cases  and  for 
the  offences  provided  for  in  the  codes.  In  the  exercise  of 
their  powers  the  clergy  adopted — at  least  to  some  extent 
— the  forms  of  procedure  in  use  in  the  Roman  law. 

On  the  Norman  accession,  William  introduced  the 
feudal  system,  but  professed  to  respect  and  continue  in 
force  the  Saxon  laws.  He  separated  the  courts  into 
^  courts  of  different  jurisdictions,  the  clergy  no  longer  sat 
in  the  temporal  courts,  but  apart  in  courts  Christian  or 
Ecclesiastical.  It  would  seem  they  were  debarred  the 
exercise  of  any  jurisdiction  in  controversies  in  which 
money  damages  were  claimed.  The  line  of  demarca- 
tion between  the  jurisdiction  of  the  temporal  and  eccle- 
siastical courts  appears  to  have  been  that,  where  com- 
pensation was  sought,  resort  was  to  be  had  to  the 
temporal   courts;    and    where    the    reformation    of    the 


The  Dome-Book  of  Alfred,  said  by  Blackstone  to  have  been  extant  so  late  as  the 
reign  of  Kino-  Edward  the  Fourth,  and  to  have  been  lost,  was  supposed  by  both  Ilal- 
lam  and  Turner  never  to  have  existed.  It  has  since  been  published  by  the  Record 
Commissioners,  vol.  I,  pp.  55-101.  It  commences  with  the  ten  commandments,  fol- 
lowed by  many  Mosaic  precepts.  After  quoting  the  canons  of  the  Apostolical  coun- 
cil at  Jerusalem,  Alfred  refers  to  the  command,  "  As  ye  would  that  men  should  do 
unto  you,  do  ye  also  to  them ; "  adding,  "  from  this  one  doom,  a  man  may  remember 
that  he  judge  every  one  righteously  he  need  heed  no  other  doom  book." 

The  Puritan  Colony  of  New  England  resolved  at  a  "  General  Court,  October  25th, 
1639  *  *  *  the  worde  of  God  shall  be  the  onely  rule  to  be  attended  vnto  in 
ordering  the  affayres  of  government  in  this  plantatio." 


§    56.]  GIST    OF    ACTION.  101 

offender  only  was  desired,  then  resort  was  to  be  had  to 
the  ecclesiastical  courts.  And  where  the  ecclesiastical 
courts  entertained  jurisdiction  of  suits  in  which  money 
might  be  demanded,  the  temporal  courts  restrained  them 
from  proceeding  therein  by  the  writ  of  prohibition.  As 
there  is  now,  so  there  must  ever  have  been,  a  distinction 
between  language  occasioning  pecuniary  or  temporal 
injury,  and  language  insulting  and  provoking  and 
harrowing  to  the  feelings,  without  occasioning  pecuniary 
or  temporal  injury.  This  distinction  seems  to  have  been 
clearly  recognized  by  the  statute  circumspecte  agatis,1  and 
leads  almost  irresistibly  to  the  conclusion  that  the  gist 
of  the  action  of  trespass  on  the  case  for  words,  was  the 
pecuniary  loss,  and  not  for  the  injury  to  the  reputation — 
the  defamation.  In  the  early  stages  of  society,  only  that 
language  which  put  one  in  peril  of  punishment,  loss  of 
inheritance,  or  of  social  companionship,  could  occasion 
j)ecuniary  loss ; 2  but  as  society  progresses,  as  more  faith 

1  The  statute  thus  styled  was  passed  13  Edward  I,  stat.  4,  ch.  i,  A.  D.  1285. 
The  King  to  his  justices  sendeth  greeting :  "  Use  yourselves  circumspectly  (circum- 
specte  agatis)  in  all  matters  concerning  the  Bishop  of  Norwich  and  his  clergy,  not 
punishing  them  if  they  hold  pleas  in  courts  Christian  of  such  things  as  be  meer 
spiritual  *  *  *  and  for  laying  violent  hands  on  a  clerk,  and  in  canons 
of  defamation  it  hath  been  granted  already  that  it  shall  be  tried  in  a  spiritual  court 
when  money  is  not  demanded  but  a  thing  done  for  punishment  of  sin."  By  this  it 
appears,  said  Lord  Coke,  that  the  cognizance  of  defamation  was  granted  by  act  of 
Parliament.  (2  Inst.  492.)  See  Appendix  D,  No.  11,  to  Ecclesiastical  Comm'rs 
Report,  Feb.  27,  1832;  and  Stephens'  Ecclesiastical  Statutes,  pp.  26-34.  The 
statute  9  Edward  II,  stat.  1,  ch.  iv,  A.  D.  1315,  enacted:  "In  defamation,  prel- 
ates shall  correct  also  in  manner  above  said,  the  King's  ^prohibition  notwith- 
standing." 

It  seems  of  those  defamations  by  which  the  party  is  damnified  the  spiritual  court 
cannot  hold  plea.  (Vin.  Ab.  tit.  Prohibition,  D.  5.)  In  Bacon's  Abr.  tit.  Courts 
Ecclesiastical  D,  it  is  said  :  "  No  suit  can  be  instituted  in  an  ecclesiastical  court  for 
defamatory  words  in  writing,  because  they  may  be  the  subject  of  an  action  at  law." 
(Comb.  71.)  This,  however,  appears  not  to  be  correct.  In  "Ware  v.  Johnson,  2  Sir 
Geo.  Lee's  Cas.  in  Eccl.  Co'ts,  103  (A.  D.  1755),  the  words,  "  He  keeps  a  whore  in  his 
house,"  were  held  to  be  defamation,  and  that  whether  the  language  was  in  writing  or 
by  parol.     And  see  2  Phil.  Eccl.  Cas.  106. 

2  "  It  is  said  that  formerly  no  actions  were  brought  for  words  unless  the  slander 
was  such  as,  if  true,  would  endanger  the  life  of  the  object  of  it.  (Noy,  64  ;  1  Freem. 
277.)    But  too  great  an  encouragement  being  given  by  this  lenity  to  false  and  ma- 


102  GIST   OF   ACTIOX.  [Ch.  IV. 

and  reliance  have  to  be  placed  by  men  each  in  the 
integrity  of  the  other,  so  increases  the  power  to  inflict 
pecuniary  injury  by  means  of  language.  The  theory  of 
the  law  being  to  redress  all  wrongs  by  a  pecuniaiy  fine, 
whenever  it  appeared  that  a  pecuniary  wrong  was 
occasioned  by  language,  there  the  temporal  courts  under- 
took to  afford  redress.  It  may  be  that  at  first,  in  all 
cases,  in  order  to  maintain  an  action  for  words  in  the 
temporal  courts,  it  was  necessary  to  prove  a  pecuniary 
loss ;  but  those  courts,  by  laying  it  down  as  a  rule  of 
evidence,  that  certain  words  'per  se,  and  without  any 
further  evidence,  were  proof  of  pecuniaiy  loss,  facilitated 
a  resort  to  the  temporal  courts,  and,  by  gradually  ex- 
tending the  list  of  words  which  were  regarded  per  se  as 
evidence  of  pecuniary  loss,  so  did  those  courts  extend 
their  jurisdiction.  Thus,  probably,  originated  the  dis- 
tinction between  words  actionable  per  se  and  words 
actionable  only  on  proof  by  other  evidence  than  the 
words  themselves  of  pecuniary  loss.  It  is  supposed  that 
formerly  the  English  law  recognized  no  distinction 
between  the  effect  of  written  and  spoken  words.  When 
or  why  that  distinction  was  introduced  is  unknown. 
It  may  well  be  that  the  desire  of  the  temporal  courts  to 
enlarge  their  jurisdiction  led  them  to  adopt  this  distinc- 
tion, a  distinction  for  which  they  found  some  warrant  in 
the  Roman  law.1 

§  57.     We  attempted  to  explain  in  Chapter  II,  the 


licious  slanders,  it  is  now  held  that  for  scandalous  words  of  the  species  before  men- 
tioned (that  may  endanger  a  man  by  subjecting  him  to  the  penalties  of  the  law,  may 
exclude  him  from  society,  may  impair  his  trade,  or  may  affect  a  peer  of  the  realm,  a 
magistrate,  or  one  in  public  trust),  an  action  on  the  case  may  be  had  without  proving 
any  particular  damage  to  have  happened,  but  merely  upon  the  probability  that  it 
might  happen.     (3  Bl.  Com.  ch.  viii.) 

1  See  note  ,  p.  67,  ante,  Daniel  O'Connell,  in  1834,  proposed  a  bill  in  the  English 
Parliament  intended,  amongst  other  things,  to  assimilate  libel  to  slander  as  to  what 
language  should  give  a  right  of  action.  See  this  bill  commented  upon,  XI  Londoo 
Law  Mag.  432. 


§    57.]  GIST    OF    ACTION.  103 

difference  between  an  injury  to  reputation  and  an  injury 
to  property ;  and  to  show  that  an  injury  to  the  reputa- 
tion did  not  necessarily  imply  an  injury  to  the  person  or 
property.  In  Chapter  III,  we  undertook  to  show  that 
reputation  was  not  an  absolute  right,  and  in  the  preceding 
portion  of  this  chapter  we  have  attempted  to  show  that 
the  temporal  courts  of  common  law  only  recognized 
injuries  involving  pecuniary  or  temporal  loss.  It  nowhere 
appears  that  the  temporal  courts  recognized  any  right  to 
reputation,  and  it  is  entirely  consistent  with  all  our 
knowledge  of  the  law  to  assert  that,  in  theory  at  least, 
the  temporal  courts  of  England  never  did,  and,  as  the 
law  in  this  respect  has  not  been  changed,  they  do  not 
now,  recognize  reputation  as  a  right  which  the  law 
protects.  And  if  this  be  so  in  England,  then  is  it  so  in 
the  United  States.  When  we  consider  that  "falsely 
and  maliciously  to  impute,  in  the  coarsest  terms  and 
on  the  most  public  occasion,  want  of  chastity  to  a  woman 
of  high  station  and  unspotted  character,  or  want  of 
veracity  or  courage  to  a  gentleman  of  undoubted  honesty 
and  honor,  cannot  be  made  the  foundation  of  any  proceed- 
ing civil  or  criminal ;  whereas  an  action  may  be  maintained 
for  saying  that  a  cobbler  is  unskillful  in  mending  shoes, 
or  that  any  one  has  held  up  his  hand  in  a  threatening 
posture  to  another," 1  it  would  seem  to  need  nothing  more 
to  satisfy  the  most  skeptical  that  the  protection  is  to  the 
property,  and  not  to  the  reputation.  We  conclude,  there- 
fore, to  state  as  law,  that  pecuniary  loss  to  the  plaintiff  is 
the  gist  of  the  action  for  slander  or  libel.  If  the  lan- 
guage published  has  not  occasioned  the  plaintiff  pecuniary 
1<  >ss  (actual  or  implied),  then  no  action  can  be  maintained.2 

1  Report  of  Committee  of  House  of  Lords  on  Defamation  ami  Libel,  July,  1843. 

a  In  a  note  to  the  "  Preliminary  Discourse  "  to  the  American  edition  of  Starkie  on 

Slander,  a  ter  referring  to  the  Roman  law  as  making  personal  contumely  and  insult 

'■nee  of  the  offence  of  slander,  adds:   "  This,  it  will  be  seen,  is  a  circumstance 

which  constitutes  a  very  essential  and   characteristic  distinction  between  the  law  of 

England  and  that  of  Rome,  and  of  those  countries  which  have  adopted  the  civil  law ; 


104  GIST    OF    ACTION.  [Ch.  IV. 

Let  us  not  be  misunderstood.  We  concede  all  that  can 
be  urged  as  to  the  value  of  a  "  good  reputation?  We 
believe,  with   Lord  Bacon,  that  "men's  reputations  are 


*  *  *  for  the  law  of  England  has  from  very  distant  times  considered  the 
temporal  injury  to  a  man's  estate,  and  not  the  contumely  or  insult  of  the  agent  as  the 
ground  of  compelling  reparation  in  damages."  (Prelim.  Disc,  vii.)  "There  must  be 
some  certain  or  probable  temporal  loss  or  damage  to  make  words  actionable  ;  "  this 
was  said  of.  oral  words  by  De  Gray,  C.  J.,  in  Onslow  v.  Home,  3  Wils.  177,  and  this 
was  approved  by  Lawrence,  J.,  in  Holt  v.  Scholefield,  6  T.  R.  G91.  And  per  Bayley, 
J.,  in  Whittaker  v.  Bradley,  7  D.  &  R.  649 :  "  The  principle  on  which  this  species  of 
action  (action  for  saying  orally  plaintiff,  an  innkeeper,  was  a  bankrupt)  is,  that  the 
slander  has  the  effect  of  producing  temporal  damage  to  the  party  complaining."  To 
maintain  the  action  there  must  be  injury  to  the  plaintiff.  (Ellenborough,  Ch.  J..  Mait- 
land  v.  Goldney,  2  East,  426.)  An  action  on  the  case  is  not  maintainable  in  any  case 
without  showing  especial  prejudice.  (Lowe  v.  Harwood,  Cro.  Car.  140  S.  C. ;  Palmer, 
529;  Ley,  82.) 

Reputation  or  fame  is  under  the  protection  of  the  law,  because  all  persons  have 
an  interest  in  their  good  name,  and  scandal  and  defamation  are  injurious  to  it,  though 
defamatory  words  are  not  actionable  otherwise  than  as  they  are  a  damage  to  the 
estate  of  the  person  injured.  ("Wood's  Ins.  37  ;  Jacob's  Law  Diet,  voce  Reputation  or 
Fame.)  An  action  on  the  case  lies  for  words  and  for  deeds.  For  words  spoken  to  or 
concerning  another,  whereby  one  is  defamed  and  damnified.  (2  Wood's  Ins.  927.) 
"  One  essential  ingredient  of  a  good  cause  of  action  for  defamation  is  damage." 
(Channell,  B.,  Foulger  v.  Newcomb,  Law  Rep.  II  Ex.  330.)  Reputation  is  property. 
(Dixon  v.  Holden,  Law  Rep.  VII  Eq.  492.) 

"  In  England,  by  the  common  law,  defamatory  words  are  not  actionable,  other- 
wise than  as  they  are  a  damage  to  the  estate  of  the  person  injured."  (Wood's 
Law,  244,  note.)  "  I  am  not  certain,"  says  Lord  Karnes,  "  that  in  England  any  verbal 
injury  is  actionable,  except  such  as  may  be  attended,  with  pecuniary  loss  or  damage. 
If  not,  we  in  Scotland  are  more  delicate.  Scandal,  or  any  imputation  upon  a  man's  good 
name,  may  be  sued  before  the  commissaries,  even  when  the  scandal  is  of  such  a  nature 
that  it  cannot  be  the  occasion  of  any  pecuniar}'  loss.  It  is  sufficient  to  say,  I  am  hurt 
in  my  character."     (Historical  Law  Tracts,  p.  225.) 

"The  party  injured  [by  libel]  may  no  doubt  bring  an  action  on  the  case.  This 
process,  however,  is  not  competent  unless  it  is  grounded  on  an  actual  loss,  which  must 
be  shown  to  have  been  sustained."  (Borthwick  on  Libel,  4.)  In  Boldroe  v.  Porter, 
Yelv.  20,  the  declaration  alleged  per  quod  the  plaintiff  was  in  danger  to  lose  her  goods 
and  life.  In  Edward's  Case,  Cro.  Eliz.  6,  held  the  charge  actionable,  and  assigned  as 
the  reason,  that  "  by  such  speech  the  plaintiff's  good  name  is  impaired."  In  Button  i>. 
Heywood,  8  Mod.  24,  Fortescue,  J.,  observed  :  "  It  was  the  rule  of  Holt,  Ch.  J.,  to  make 
words  actionable  whenever  they  sound  to  the  disreputation  of  the  person  of  whom  they 
were  spoken,  and  this  was  also  Hale's  and  Twisden's  rule,  and  I  think  it  a  very  good 
rule." 

"I  will  cite  rights  to  forbearances  merely.  A  man's  right  or  interest  in  his  good 
name  is  a  right  which  avails  against  persons  as  considered  generally  and  indetermin- 
ately. They  are  bound  to  forbear  from  such  imputations  against  him  as  would  amount 
to  iujuries  towards  his  right  in  his  reputation.  But  though  the  right  is  a  real  right, 
there  is  no  subject,  thing,  or  person  over  which  it  can  be  said  to  exist.     If  the  right 


§    57.]  GIST    OF    ACTION.  105 

tender  things,  and  ought  to  he  like  Christ's  coat,  without 
seam."  *  And  "  who  can  see  worse  days  than  he  that,  yet 
living,  doth  follow  in  the  funeral  of  his  own  reputation." 
We  do  not  intend  to  deny  that  the  law  does  in  fact,  and 
to  a  great  extent,  protect  reputation ;  but  we  intend  to  be 
understood  as  insisting  that,  where  the  law  does  protect 
reputation,  it  does  so  indirectly,  by  means  of  a  fiction — an 
assumption  of  pecuniary  loss.  In  theory,  the  action  for 
slander  or  libel  is  always  for  the  pecuniary  injury,  and 
not  for  the  injury  to  the  reputation.  There  are  many 
such  fictions  introduced  into  the  administration  of  the 
law,  by  means  of  which,  without  changing  the  rule  of  law, 
the  law  is,  in  effect,  changed.2  When  this  is  the  case,  this 
difficulty  arises  :  Shall  the  rule  be  stated  as  it  is  in  theory 
or  as  it  is  in  effect  ?  and  then  this  further  difficulty,  that  these 
two  phases  of  the  same  rule  are  sometimes  stated  as  two 
distinct  rules,  and  the  rule  being  stated  sometimes  one  way 
and  sometimes  the  other,  creates  confusion  and  apparent 
contradiction.  It  may  be  that  practically  it  is  the  same 
thing,  whether  the  remedy  is  given  by  law  for  the  injury 
to  the  reputation,  or  for  the  pecuniary  injury  by  means  of 
an  attack  on  the  reputation ;  but  in  reasoning  on  this,  as 
on  any  other  subject,  it  makes  all  the  difference  whether 
we  start  with  a  true  proposition,  or  a  false  one.  With 
a  false  premise  we  may  arrive  at  a  conclusion  which  is 


has  any  subject,  its  subject  consists  of  the  contingent  advantages  which  he  may  pos- 
sibly derive  from  the  approbation  of  others.  (2  Austin's  Lect.  Juris.  51.)  Right  to 
reputation  may  be  classed  with  property.  It  is  a  right  to  the  chance  of  the  favorable 
opinion  and  the  good  offices  of  others.  There  is  no  obligation  to  do  me  good,  but  an 
obligation  to  forbear  from  lessening  the  chance  of  deriving  good  from  voluntary 
service,  &c.     (2  Id.  479,  and  3  id.  179,  184.) 

1  Lord  Bacon's  charge  against  Lumsden.  Good  reputation  has  ever  been,  as  it  is 
now,  of  great  value  as  a  shield  against  imputation  of  crime  ;  by  a  law  of  William  the 
Conqueror,  if  a  man  of  good  reputation  was  charged  with  theft,  he  might  clear  him- 
self by  his  single  oath.  (Leges  Gul.  Conq.  14,  in  the  Ancient  Laws  and  Institutes 
published  by  the  English  Record  Commissioners.  See  Anthon's  Law  Student,  Thesis  X: 
Character,  how  far  a  Universal  Shield.     Also,  McXally's  Crirn.  Ed.  573.) 

2  See  Maine's  Ancient  Law,  2G,  and  Bryant  v.  Foot,  Law  Rep.  II  Q.  B   181. 


106  GIST    OF    ACTION.  [Ch.  IV. 

true ;  but  we  can  never,  under  such  circumstances,  be  sure 
that  our  conclusion  is  true. 

§  58.  Among  the  fictions  referred  to  in  the  last  pre- 
ceding section,  perhaps  the  most  noticeable,  and  the  one 
which  best  illustrates  our  meaning,  is  that  by  which  more 
than  nominal  damages  are  recovered  by  a  parent  for  the 
seduction  of  a  daughter.  At  the  present  day,  no  lawyer 
doubts  that  at  common  law  no  action  could  be  main- 
tained for  the  seduction  of  a  daughter,  merely  as  a  daugh- 
ter, nor  merely  for  the  seduction.  But  at  common  law, 
to  deprive  one  of  the  sendees  of  his  hired  sen-ant  gave  a 
cause  of  action,  because  it  occasioned  a  pecuniaiy  injur}-. 
The  common  law  gave  a  parent  a  right  to  the  services  of 
his  minor  children ;  then,  in  order  to  afford  a  remedy 
for  seduction,  which  was  not  contemplated  by  the  common 
law,  the  daughter  is  styled  servant,  and  the  remedy  is 
given  in  theoiy,  not  for  the  grief  and  shame  of  the  seduc- 
tion, but  because,  by  means  of  the  seduction,  the  servant 
was  the  less  able  to  perform  the  services  required  of  her, 
and  the  parent  thereby  sustained  a  pecuniary  loss.1  This 
was  the  first  step  ;  and  where  the  daughter  was,  in  fact, 
one  of  the  parent's  household,  the  change  from  the  status 
of  daughter  to  that  of  servant  was  easy  enough.  The 
next  step  was  where  the  infant  daughter  was  not  in  fiict 
one  of  the  parent's  household,  but  was  in  the  service  of 
another,  by  her  own  contract,  and  not  by  the  contract  of 
the  parent ;  then  the  action  was  allowed  on  these  grounds : 
the  daughter,  being  an  infant,  could  not  lawfully  contract 
for  her  services,  therefore  the  parent  could  at  will  rescind 
the  contract,  and  take  the  daughter  to  the  parental  service ; 
but  if  the  "parent   did   so,  the   servant   would   be  less 


1  There  can  be  no  doubt  that  the  law  is  as  above  stated  (Knight  v.  Wilcox,  14  N. 
Y.  413);  and  yet  it  is  but  candid  to  say  that  there  are  dicta  to  the  effect  that  the 
mortification  and  disgrace  and  wounded  feelings  constitute  the  gravamen  of  the  action. 
See  Badgley  v.  Decker,  44  Barb.  577,  and  cases  there  cited. 


§    59.]  GIST   OF    ACTION.  107 

efficient,  and  so  a  pecuniary  injury  might  or  did  result. 
The  next  and  final  step  thus  far  is,  that  where  the  infant 
daughter  was,  by  the  contract  of  the  parent,  the  servant 
of  another,  still  the  action  can  be  maintained  if  the 
seducer  by  his  fraud  had  procured  the  making  of  the  con- 
tract, and  this  on  the  ground  that  the  fraud  vitiated  the 
contract,  and  leaves  the  parent  an  option  to  reclaim  the 
daughter's  services.1 

§  59.  By  similar  processes  to  those  detailed  in  the 
last  preceding  section  it  has  come  to  pass  that  the  remedy 
for  injuries  by  language,  in  theory  given  only  to  redress  a 
pecuniary  loss,  is  now  applied  to  and  embraces  cases  in 
which  no  pecuniary  loss  is  or  can  be  shown  to  have 
occurred.  The  process  by  which  this  result  has  been 
arrived  at  is,  by  adopting  the  rule  of  evidence  above 
referred  to  (§  56),  that  certain  language  is  per  se,  and 
without  other  evidence,  conclusive  proof  of  pecuniary 
loss;  this,  however,  is  only  a  rule  of  evidence,  and  the 
rule  of  right  remains  intact — that  a  pecuniary  loss  must  be 
shown  to  entitle  a  remedy.  That  the  rule  is  so  is  demon- 
strated by  the  case  of  words  to  which  the  rule  of  evidence 
just  referred  to  does  not  apply,  or  to  words  which  are  said 
not  to  be  actionable  per  se — that  is,  which  are  not  per  se 
evidence  of  pecuniary  loss.  As  to  these,  it  has 'never  been 
doubted  that  a  pecuniary  loss  must  be  shown  to  entitle 
the  plaintiff  to  a  remedy.2 

1  See  Lipe  v.  Eisenlerd,  32  N.  Y.  229 ;  "White  v.  Nellia,  31  K  Y.  405 ;  Dain  v. 
"Wyckoff,  18  N.  Y.  45  ;  s.  c.  7  N.  Y.  191 ;  Mulvehall  v.  Milward,  11  N.  Y.  343 ;  Bartley 
v.  Richtmeyer,  4  N.  Y.  38 ;  Knight  v.  Wilcox,  14  N.  Y.  413;  Harper  v.  Luff  kin,  7  B. 
&  C.  887 ;  1  M.  &  R.  166.  This  last  case  is  a  noticeable  instance  of  how  far  courts 
will  in  effect  depart  from  the  rule  of  law,  while  they  uphold  it  in  the  letter. 

2  Beach  v.  Ranney,  2  Hill,  309;  Herrick  v.  Lapham,  10  Johns.  291 ;  Hallock  y. 
Miller,  2  Barb.  630;  Hersh  v.  Ring-wait,  3  Yeates,  508.  "The  real  foundation  of  the 
action  [for  libel]  is  the  right  to  recover  pecuniary  satisfaction."  (Viele  v.  Gray,  10 
Abb.  Pr.  R.  7.)     The  special  damage  must  be  of  a  pecuniary  nature.    (Beach  v.  Ranney, 

2  Hill,  309.)  And  see  ante  note  to  §  57,  and  post  note  to  §  72  ;  Heard  on  Libel,  ch.  v, 
§  54,  Kelly  v.  Partington,  3  Nev.  &  M.  116;  5  B.  &  Ad.  645;  Keenholts  v.  Decker, 

3  Denio,  346;  Foulger  v.  Newcomb,  Law  Rep.  II  Ex.  330;  Terwilliger  v.  Wands,  17 
K  Y.  62;  Wilson  v.  Goit,  17  N.  Y.  444  ;  Roberts  v.  Roberts,  33  Law  Jour.  Q.  B.  250. 


CHAPTER  V. 

WRONGFUL    ACTS.       ELEMENTS    OF   A    WEONG. 

Wrongful  Acts —  Liability — Presumptions  of  Law — 
Questions  of  Law  and  Fact  — Essential  acts  in  Slan- 
der and  Libel — Defamatory — Falsity —  Voluntary — 
Involuntary — Intention — Malice. 

§  60.  Although  we  are  unable  to  predicate  of  any 
act  per  se  whether  or  not  it  is  a  xvrong  (§  51),  we  may, 
at  least  as  to  some  acts,  determine  of  them  per  se  whether 
or  not  they  are  wrongful. 

§  61.  An  act  is  wrongful  which,  as  a  necessary  or  as  a 
natural  and  proximate  consequence,  occasions  hurt  of 
body  or  pecuniary  loss  to  another  than  the  actor.1  When 
the  necessary  consequences  of  the  act  must  be  hurt  of 
body  or  pecuniary  loss,  then  the  act  is  patently  wrongful, 
or  wrongful  per  se.  When  the  act  is  one  the  conse- 
quences of  which  are  not  necessarily  hurtful  to  the  person 
or  property  of  another,  but  is  an  act  the  natural  and 
proximate  consequences  of  which  may  occasion  hurt  to 
the  person  or  property  of  another,  then  it  is  latently 
wrongful.  It  is  wrongful,  provided  that  as  a  natural  and 
proximate  consequence  there  ensues  personal  hurt  or 
pecuniary  loss  to  another.  One  and  the  same  act  may 
occasion  harm  to  the  person  and  loss  of  property  of 
another,  and  either  by  its  necessary  or  its  natural  and 
proximate  consequences,  or  both.  It  is  not  always  easy 
to  determine  what  are  necessary  and  natural  and  proxi- 


1  Bonomi  v.  Buckhouse.  9  Ho.  Lords'  Cas.  503 ;   Smith  v.  Thackerah,  Law  Rep.  1  C. 
P.  566. 


WRONGFUL   ACTS.  109 

mate  consequences,  and  tB  distinguish  them  from  those 
which  are  not  necessary,  not  natural,  or  not  proximate 
(remote)  consequences.  The  rules  for  making  this  deter- 
mination and  distinction  will  be  hereafter  considered. 
We  have  here  but  to  remark  that  the  necessaiy,  natural, 
and  proximate  consequences  of  an  act  are  those  of  which 
alone  the  law  takes  cognizance,  and  these  it  4s  which 
constitute  in  legal  phraseology  damage  or  injury.  Any 
consequence  which  is  neither  necessary  nor  natural  and 
proximate  is  disregarded  in  law. 

§  62.  No  act,  but  a  wrongful  act,  can  become  a  wrong ; 
but  every  wrongful  act,  in  the  absence  of  any  excuse  for 
it  being  shown,  is  prima  facie  a  wrong.  It  is  a  wrong 
provisionally  or  conditionally ;  that  is  to  say,  it  is  regarded 
for  all  purposes  as  a  wrong,  unless  and  until  a  legal  excuse 
for  the  doing  it  is  shown.  That  which  does  not  exist  and 
that  which  is  not  shown  to  exist  are  the  same.  A  legal 
excuse  not  shown  to  exist  is  the  same  as  though  no  legal 
excuse  existed.  The  burden  of  showing  the  existence  of 
a  legal  excuse  or  a  defence  is  always  upon  the  doer  of  the 
wrongful  act. 

§  63.  Anything  which  must  be  shown  to  establish  a 
legal  excuse  or  a  defence  is  no  part  of  the  essential  ele- 
ment of  a  wrong.  In  practice,  to  entitle  to  a  remedy,  it 
is  required  only  to  show  a  wrongful  act  done,  and  nothing 
more  appearing,  the  right  to  the  remedy  follows  as  of 
course.  Reason  and  expediency  alike  demand  that  in  this 
respect  the  theory  should  correspond  to  the  practice. 

§  64.  Legal  excuses  are  of  two  kinds — such  as  consti- 
tute an  absolute  bar  or  defence  to  the  act,  or  such  as  con- 
stitute a  conditional  defence.  A  le^al  excuse  of  the  latter 
kind  is  a  defence,  until  some  additional  fact  is  shown 
which  takes  from  it  the  character  of  a  legal  excuse.  The 
legal  excuse  that  the  language  was  spoken  by  a  judge  as 


HO  WRONGFUL    ACTS.  [Cll.    V. 

such,  or  by  a  witness  as  such^s  of  the  first  or  absolute 
kind.  The  legal  excuse  that  the  language  was  published 
to  one  who  was  interested  to  know  it  and  with  a  belief 
that  it  was  true  is  a  legal  excuse  of  the  second  or  qualified 
kind.  The  excuse  exists  only  provided  it  does  not  appear 
that  the  language  was  published  not  believing  it  to  be 
true,  or  published  to  one  not  interested  to  know  it. 

§  65.  There  is  this  distinction  between  legal  excuse 
and  defence.  Legal  excuse  is  such  a  state  of  facts  as  pre- 
vents a  wrongful  act  amounting  to  a  wrong.  Defence 
includes  legal  excuse  and  more;  namely,  those  cases  in 
which  the  wrong  is  admitted  to  have  been  done,  but 
where,  from  some  circumstance,  such  as  the  statute  of 
limitations,  or  satisfaction,  or  in  the  action  for  libel  the 
truth  of  the  language  published,  the  plaintiff  has  forfeited 
or  waived  his  right  of  action. 

§66.  The  question  what  constitutes  a  wrong  or  when 
has  a  wrong  been  committed,  and  the  question  who  is 
liable  therefor,  are  essentially  distinct  questions,  and  to 
be  determined  by  different  rules. 

§  67.  As  regards  liability,  no  one  is  responsible  for 
involuntary    acts,1   nor    for    any    other    than    'wrongful 


1  A  man  must  will  an  act  before  he  can  be  responsible  for  it.  (Wood's  Civil  Law, 
18.)  No  action  lies  for  an  inevitable  accident.  (Harvey  v.  Dunlop,  Hill  it  Denio, 
Sup.  193 ;  see  Center  ».  Finney,  17  Barb.  94,  affirmed  2  Selden's  notes,  44.)  No  man 
is  liable  civilly  or  criminally  for  a  purely  accidental  mischief;  that  is  to  say,  for  the 
consequences  of  an  act  not  his  own  which  he  was  unable  to  foresee,  or,  foreseeing, 
was  unable  to  prevent  (2  Austin's  Lect.  Juris.  165,  167.)  The  act  must  be  inten- 
tionally clone ;  the  meaning  of  which  is,  that  the  defendant  should  know  what  he 
published,  for,  as  in  the  case  put  by  Starkie,  if  a  servant  should  deliver  a  sealed  letter 
containing  the  defamatory  matter  without  knowing  its  contents,  he  would  not,  though 
the  actual  instrument  of  publication,  be  liable  to  an  action.  (Daly.  F.  J.,  Viele  v. 
Gray,  10  Abb.  Pr.  R.  7;  18  How.  Pr.  R.  550.)  If  published  inadvertently  it  would 
not  be  a  libel.  (Rex  v.  Abingdon,  1  Esp.  Cas.  228.)  Being  the  sale  of  a  few  copies  of 
a  periodical  journal  containing  the  libel,  it  was  for  the  jury  to  say  if  the  defendants 
were  cognizant  of  what  they  sold.  (Chubb  v.  Flannagan,  6  C.i  P.  431.)  Sinco 
intention  and  will  are  essential  to  every  act,  and  intention,  will,  and  malice  to  every 


§    68.]  ELEMENTS    OF    A    WRONG.  Ill 

acts  (§  62).  All  who  without  legal  excuse  concur  in  a 
wrongful  act  are  alike  liable  either  jointly  or  separately. 
No  one  can  excuse  his  concurrence  in  a  wrongful  act  merely 
on  the  ground  that  in  what  he  did  he  acted  as  agent  for 
another.1  It  sometimes  happens  that  those  who  are  in  no. 
wise  concerned  in  the  actual  doing  of  a  wrongful  act,  or  a 
wrong,  are  nevertheless  liable  therefor;  this,  be  it  ob- 
served, is  not  on  account  of  any  presumed  connection  iviih 
the  act,  but  because  under  the  circumstances  they  are 
legally  responsible  for  the  acts  of  the  actual  wrongdoers.2 
It  may  also  occur  that  the  one  who  actually  does  the  act 
may  not  be  liable,  while  for  that  same  act  another  may 
be  liable.3 

§  68.  The  proposition  that  one  is  liable  for  his  wrong- 
ful act  implies,  in  terms,  liability  for  the  necessary,  natural, 
and  proximate  consequences  of  the  act.  This  leaves  no 
room  for  any  question  as  to  the  intent  with  which  the  act 
is  done.  There  may  or  may  not  be  any  intent,  good  or 
bad ;  but  intent  or  no  intent,  the  liability  is  for  the  act 
and  its  consequences,  not  for  the  intent.  By  the  law  of 
England  intent  alone,  without  any  overt  act,  may  con- 
stitute treason,  with  this  exception  there  is  no  case  in 
which  intent  alone,  without  an  act,  can  constitute  a  wrong. 
The  prima  facie  liability  for  the  commission  of  a  wrong- 
ful act  can  be  avoided  only  by  showing  some  defence  or 
lawful  excuse.     Showing  the  act  to  have  been  done  with 

crime,  the  absence  of  any  intention  or  will  will  prevent  any  occurrence  from  being  an 
action,  and  the  absence  of  malice  *  *  *  will  prevent  any  action  from  being  a 
crime.     (Stephen's  Crim.  Law,  85.) 

1  "  There  are  no  agencies  in  crime."  (E.Darwin  Smith,  J.,  Lowenstein  v.  The 
People,  54  Barb.  305.)  If  a  person  does  an  act  with  a  guilty  intent,  he  is  not  the 
agent  of  any  one.  If  he  does  it  innocently,  he  is  the  agent  of  some  person  or  per- 
sons, and  if  two  have  agreed  to  employ  him,  he  is  the  agent  of  both.  Alderson,  B., 
Reg.  v.  Bull,  7  Law  Times,  8;  and  see  Moloney  v.  Bartlett,  3  Camp.  210;  Ilecker  v. 
De  Groot,  15  How.  Pr.  R.  314,  and  post,  §§  265-7. 

2  See  post,  Publisher. 

3  See  ante,  note  to  §  67,  and  post,  Publisher,  §  121. 


112  WKONGFUL   ACTS.  [Ch.  V. 

a  good  intent  would  not  of  itself,  in  any  case,  constitute  a 
defence  or  lawful  excuse.  The  consequences  of  an  act  are 
incidents  to  the  act,  and  inseparable  from  the  act.  Liability 
for  the  one  is  inseparable  from  liability  for  the  other.  The 
usual  ground  upon  which  this  liability  for  the  consequen- 
ces of  an  act  is  placed  is,  that  the  law  presumes  every  one 
to  intend  the  necessary  and  natural  consequences  of  his 
acts.1  The  phrase,  the  law  presumes,  is  objectionable.  The 
law  does  not  presume.2  It  is  customary  to  say  that  the 
law  presumes  every  one  innocent ;  every  one  of  good  re- 
pute ;  every  wrongful  act  to  be  malicious ;  every  one  to 
intend  the  consequences  of  his  acts,  &c.  But  it  is  not  so. 
If  one  is  accused  of  wrong,  the  law  requires  proof  of  his 
guilt ;  not  because  it  presumes  him  innocent,  but  because 
it  does  not  presume  him  guilty,  and  requires  the  fact  to 
be  proved.  One  complaining  of  injury  to  his  reputation 
is  not  excused  from  proving  his  reputation  to  be  good  be- 
cause the  law  presumes  his  reputation  to  be  good,  but 
because  the  law  does  not  presume  it  bad.     On  proof  of  a 


1  The  law  presumes  a  party  to  intend  the  injury  his  acts  are  calculated  to  pro- 
duce. (Haire  v.  Wilson,  9  B.  <fc  Cr.  643  ;  Viele  v.  Gray,  10  Abb.  Pr.  R.  7,  and  series 
of  dicta.)  A  man  is  as  much  answerable  for  the  probable  consequences  of  his  act  as 
for  the  actual  object.  (Rex  v.  Moore,  3  B.  <fc  A.  184.)  "  It  is  a  universal  principle 
that  when  a  man  is  charged  with  doing  an  act  (that  is  a  wrongful  act  without  any 
legal  justification)  of  which  the  probable  consequences  may  be  highl\-  injurious,  the 
intention  is  an  inference  of  law  resulting  from  the  doing  the  act."  (Rex  v.  Dixon,  3 
M.  &  S.  15;  cited  Reg.  v.  Hicklin,  Law  Rep.  Ill  Q.  B.  375. 

3  We  are  not  unmindful  of  the  fact  that  the  books  are  full  of  such  expressions,  as 
the  law  presumes,  presumption  of  law,  <fcc.  But  the  phrase  is  objectionable  and 
should  be  reformed.  Burrill  says  the  presumption  is  rather  an  assumption.  (Pre- 
sump.  Ev.  10,  43;  and  see  6  Lond.  Law  Mag.,  354.)  The  inference,  for  it  is  absurd 
to  call  it  a  presumption.  (Stephen's  Crini.  Law,  1S2.)  "  Presumptions  of  fact  are  but 
inferences  drawn  from  other  facts."  (Mason,  J.,  O'Gara  v.  Eisenlohr,  7  Trans.  App. 
317.)  Distinction  between  presumption  of  evidence  and  presumption  of  law,  see 
The  People  v.  McCann,  16  N.  Y.  66;  Powell  v.  Cleaver,  2  Brown  Ch.  R.  499.  Pre- 
sumptions are  not  based  on  the  supposition  that  the  fact  presumed  exists,  but  because 
the  policy  of  the  law  requires  such  a  presumption.  (Doe  v.  Earnhart,  10  Iredell's 
Law  Rep.  516.)  Presumption  "  is  the  inference  of  one  fact  from  another."  (Duncan 
v.  Little,  2  Bibb,  426.)  Counsel :  It  must  be  assumed  that  the  trustee  will  do  his 
duty.  (Pollock,  Ch.  B.)  We  must  assume  nothing  either  way,  but  he  may  not. 
(Bulnois  v.  Mann,  Law  Reports  I,  Ex.  30.) 


§    69.]  ELEMENTS    OF   A   WRONG.  113 

wrongful  act  the  law  will  punish  it  as  a  wrong,  not  because 
it  presumes  the  act  to  be  malicious,  but  because  it  does 
not  presume  there  was  any  legal  excuse  for  doing  the  act. 
An  act  being  wrongful  is  prima  facie  a  wrong,  and  if  it 
is  not,  the  burden  of  showing  the  legal  excuse  to  exist  is 
on  the  actor,  or  whoever  is  liable  for  the  act.  One  is 
liable  for  the  consequences  of  his  acts  because  the  law 
will  not  presume  the  actor  intended  any  other  than  the 
consequences  of  his  act,  not  because  the  law  presumes 
any  intention.  It  would  be  as  illogical  and  unfair  to  pre- 
sume that  one  did  not  intend  to  do  exactly  what  he  has 
done,  as  it  would  be  unwise  to  allow  one  to  say  he  did 
not  intend  to  effect  the  necessary  and  natural  consequences 
of  his  acts. 

§  69.  In  every  transaction  brought  before  a  court  of 
law  for  adjudication  two  questions  always  arise :  (1)  what 
are  the  facts,  and  (2)  what  is  the  law  applicable  to  those 
facts?  The  court  always  decides  the  questions  of  law. 
Some  questions  of  fact  are  decided  by  the  court,  and  some 
by  the  jury.1  Courts  control  the  decisions  of  juries  on 
questions  of  fact.2     (1)  By  determining  whether  or  not 


1  For  twelve  honest  men  have  decided  the  cause 
Who  are  judges  alike  of  the  facts  and  the  laws. 
From  a  political  ballad  by  Alderman  Glover,  called  "  Hosier's  Ghost."  In  "  Polit- 
ical Ballads  of  the  17th  and  18th  Centuries,"  by  W.  Walker  Wilkins,  London,  1860; 
also  to  be  found  in  a  work  entitled  "  England  under  the  House  of  Hanover,"  by 
Wright.  On  the  motion  for  a  new  trial  in  the  case  of  the  Dean  of  St.  Asaph,  (3  T. 
R.  428,  note,)  Lord  Mansfield  cited  the  above  lines  as  thus: 

For  twelve  honest  men  have  decided  the  cause 
Who  are  judges  of  facts,  though  not  judges  of  laws. 
He  attributed  the  authorship  to  Mr.  Pulteny,  and  as  written  on  the  occasion  of 
the  failure  of  the  prosecution  against  "  The  Craftsman."  (See  21  State  Trials,  847, 
1046;  17  id.  625;  Forsyth's  Hist,  of  Trial  by  Jury,  272.)  Lord  Campbell  in  his 
Lives  of  the  Chancellors  (vol.  VI,  p.  176,  Life  of  Lord  Hardwicke)  attributes  thi3 
ballad  to  Pulteny — The  Percy  Anecdotes  (Anecdotes  of  Imagination)  not  only  give 
Alderman  Glover  as  the  author,  but  mention  the  circumstances  under  which  it  was 
composed,  while  the  author  was  on  a  visit  at  the  house  of  Lady  Temple. 

3  The  judge  put  back  the  jury  twice  because  they  offered  their  verdict  contrary 
to  their  evidence.     (Clayton,  50.)    Instances  of  judges  taking  questions  of  fact  out 


114  WRONGFUL   ACTS.  [Cll.  V. 

the  evidence  adduced  tends  any  way  to  prove  the  fact  in 
issue ;    whether  there  is  some  evidence  or  ?w  evidence. 

(2)  By  deciding  in  some  cases  that  certain  established 
facts  warrant  or  do  not  warrant  certain  inferences,  and 
requiring  the  jury  to  accept  such  inferences  as  proved. 

(3)  By  deciding  what  evidence  is  to  be  regarded,  and 
what  disregarded,  whether  as  going  to  prove  or  disprove 
a  fact,  or  to  affect  damages.  (4)  By  granting  new  trials 
when  they  deem  the  verdict  as  contrary  to  or  as  against 
evidence,  or  the  damages  excessive  or  inadequate.  The 
connection  between  one  fact  and  another,  as  cause  and 
effect,  is  always  a  question  of  fact.  It  is  the  degree  of 
probability  of  such  connection  which  leads  courts  to  de- 
termine whether  they  decide  the  question,  or  whether 
they  leave  it  to  the  jury  to  decide.  (1)  If  one  event  is 
very  generally  the  cause  of  a  certain  other  event,  the 
courts  lay  down  the  general  rule  that  the  proof  of  the  one 
event  is  the  proof  of  the  other,  and  do  not  allow  juries  to 
decide  contrariwise.  (2)  If  one  event  is  often  but  not  so 
generally  the  cause  of  a  certain  other  event,  then  the 
courts  leave  it  to  the  jury  in  each  case  to  decide  whether 
or  not  in  that  particular  case  that  certain  other  event  has 
followed. 

The  necessary  consequences  of  an  act  always  follow 
the  act,  and  therefore  the  courts  pronounce  it  a  rule  of 
evidence  that  the  proof  of  the  act  is  proof  of  its  necessary 
consequences,  and  the  jury  may  not  find  otherwise.  The 
natural  and  proximate  consequences  of  an  act  do  often, 
but  not  always,  follow  the  act ;  therefore  the  jury  decide 
in  each  case  whether  or  not  those  consequences  have  fol- 
lowed in  that  particular  case. 

of  hands  of  jury.  (Wright  v.  Orient  Mut.  Ins.  Co.,  6  Bosw.  269;  "Wells  v.  Com.  Mut. 
Ins.  Co.,  46  Barb.  413;  Clarke  v.  Rankin,  46  Barb.  571,  and  numerous  cases.)  Juries 
are  assistants  to  the  courts  in  determining  some  issues  of  fact.  (Forsyth's  Hist.  Trial 
by  Jury.)  In  Vermont  by  statute  the  courts  are  forbidden  to  grant  new  trials  be- 
cause they  differ  from  the  jury  as  to  the  weight  of  testimony.  (Stearns  v.  Howe,  12 
Verm.  579.) 


§§    70-72.]  ELEMENTS    OF   A    WRONG.  115 

§  70.  In  every  slander  there  are  two  acts,  (1)  the  com- 
posing, and  (2)  the  publishing.  In  every  libel  there  are 
three  acts :  (1)  the  composing,  (2)  the  writing,  and  (3) 
the  publishing.  The  act  which  is  the  essential  element  in 
the  wrongs,  slander  and  libel,  is  a  wrongful  publication  of 
language  (§  23),  and  the  general  prohibition  (§  49)  as 
applicable  to  those  wrongs  would  be :  No  one  shall,  with- 
out legal  excuse,  publish  language  concerning  another  or  his 
affairs  which  shall  occasion  him  damage.  In  other  words: 
Every  publication  of  language  concerning  a  man  or  his 
affairs,  which,  as  a  necessary  or  natural  and  proximate  con- 
sequence occasions  pecuniary  loss  to  him,  is  prima  facie  a 
slander  or  a  libel — a  slander,  if  the  publication  be  oral ;  a 
libel,  if  the  publication  be  by  writing.  This,  it  must  be 
remembered,  is  not  a  description,  much  less  a  definition  of 
a  slander  or  a  libel,  but  merely  a  description  of  what  is 
prima  facie  a  slander  or  a  libel. 

§  71.  In  describing  or  defining  a  slander  or  a  libel,  it 
is  customary  to  enumerate  among  its  requisites  (1)  that 
the  language  must  be  defamatory,  (2)  false,  and  (3)  that 
the  publication  must  be  with  malice,  or  made  maliciously. 
We  shall  endeavor  to  give  sufficient  reasons  for  omitting 
these  three  supposed  requisites  from  our  description. 

§  72.  To  constitute  a  slander  or  libel  must  the  lan- 
guage be  defamatory?  This  question-  suggests  others: 
What  is  meant  by  defamatory  ?  Does  defamatory  mean 
more  than  discommendatory  %  It  appears  to  us  that  to 
say  the  t  language  must  be  defamatory,  is  only  stating  a 
portion  of  what  is  implied  in  saying  that  it  must  be  such 
language  as  by  a  necessary  or  natural  and  proximate  con- 
sequence occasions  pecuniary  loss  to  him  whom,  or  whose 
affairs,  it  concerns.  It  is  scarcely  conceivable  that  any 
other  than  discommendatory  language  can  by  a  necessaiy 
or  natural  and  proximate  consequence  occasion  damage ; 
it  may  therefore  not  be  improper  to  say  that  the  language 


116  WRONGFUL   ACTS.  [Ch.    V. 

must  be  defamatory,  but  that  alone  does  not  express  so 
much  as  is  implied  in  the  requisite  of  occasioning  damage. 
We  shall  hereafter  have  occasion  to  advert  to  this  subject 
more  in  detail.1 

§  73.  To  constitute  a  slander  or  libel  must  the  lan- 
guage be  false  %  If  the  language  is  true,  it  is  a  defence  f 
but  it  does  not  thence  follow  that  falsity  is  an  essential 
element  of  the  wrong.  We  know  that  the  fact  of  the 
language  being  true  is  not  alone  an  answer  to  a  prosecu- 
tion for  a  libel  as  a  public  offence  ;  the  fact,  then,  of  the 
language  being  true  does  not  prevent  its  amounting  to  a 
wrong  (§  43).  To  say  that  showing  the  truth  of  the  lan- 
guage published  is  a  defence,  and  to  say  the  language 
must  be  false,  are  not  identical  propositions.  It  may  be 
correct  to  say  one  has  the  right  to  speak  the  truth,3  but  it 
is  not  correct  to  say  one  has  the  right  to  publish  the  truth 
by  writing  (§  43).  In  certain  cases,  as  will  hereafter  be 
explained,  a  cause  of  action  for  slander  or  libel  can  not  be 
shown  without  alleging  the  language  to  be  false ;  but  in 
the  ordinary  case  of  language  concerning  the  person,  no 
allegation  of  falsity  is  required  to  show  a  cause  of  action. 
In  the  latter  instance  the  allegation  of  falsity  is  not  neces- 
sary in  a  civil  action,  nor  even  in  a  criminal  prosecution.4 


1  "  But  if  the  matter  was  not  in  its  nature  defamatory,  the  rejection  of  the  plaintiff 
cannot  be  considered  the- natural  result  of  the  speaking  of  the  words.  To  make  the 
speaking  of  the  words  wrongful,  they  must  in  their  nature  be  defamatory."  (Patte- 
son,  J.,  Kelly  v.  Partington,  5  B.  ifc  Ad.  645;  3  Nev.  &  M.  116;  and  to  the  same 
effect  see  Vicars  v.  Wilcocks,  1  East,  1 ;  Ashley  v.  Ilarrison,  1  Esp.  48;  Peake,  194.) 
"We  cannot  have  a  definite  idea  of  a  design  to  injure  unconnected  with  some  degree 
of  probability  that  the  means  made  use  of  would  effect  the  design."  (Durham  v.  Mus- 
selman,  2  Blackf.  99.) 

2  "The  truth  of  the  supposed  slander  is  in  effect  a  ground  of  justification,  which 
must  be  substantiated  by  the  defendant."  (1  Starkie  on  Libel,  9.)  To  maintain  the 
action,  the  words  should  be  untrue.  (Ellenborough,  Ch.  J.,  Maitland  t\  Goldney,  2 
East,  426.) 

3  "  Our  laws  allow  a  man  to  speak  the  truth,  although  it  be  done  maliciously." 
(Bronson,  J.,  Baum  v.  Clause,  5  Hill,  199;  and  to  the  like  effect,  Foss  v.  Hildreth,  10 
Allen,  76.) 

*  Rex  v.  Burke,  7  T.  R.  4,  and  if  falsity  is  alleged,  it  cannot  be  traversed  (Lewis  v. 
Allcock,  3  M.  &.  W.  188 ;  6  Dowl.  Pr.  C.  389)  and  post,  Pleading. 


§§    74,  75.]  ELEMENTS    OF   A   WRONG.  117 

But  where,  as  often  happens,  the  language  is  alleged  to 
"be  concerning  the  person  and  also  concerning  the  affairs, 
then  the  allegation  of  falsity  becomes  material.  The  ap- 
proved precedents  of  pleadings  all  contain  the  allegation 
of  falsity,  and  thus,  probably,  falsity  has  come  to  be  re- 
garded as  essential  to  the  wrongs  and  to  the  descriptions 
of  the  wrongs  slander  and  libel. 

In  those  cases  in  which  falsity  must  be  alleged  to  show 
a  cause  of  action,  then  the  language  cannot,  as  a  necessary 
or  natural  and  proximate  consequence,  occasion  a  pecuni- 
ary loss  unless  it  is  false ;  in  such  cases,  therefore,  if  not  in 
every  case,  the  requirement  that  the  publication  must,  as  a 
necessary  or  natural  and  proximate  consequence,  occasion 
pecuniary  loss,  includes  the  requirement  that  the  lan- 
guage be  false.  As  will  appear  hereafter,  where  the  lan- 
guage is  concerning  the  person,  the  plaintiff  is  not  allowed 
in  the  first  instance,  nor,  except  to  disprove  a  defence  of 
truth,  to  give  any  evidence  of  the  falsity  of  the  language 
published.1 

§  74.  To  constitute  a  slander  or  libel  must  the  publi- 
cation of  the  language  be  with  malice  or  maliciously  ?  To 
answer  this  question  it  is  material  to  inquire  what  is 
malice,  and  what  is  meant  by  the  term  malice  as  used  in  the 
text-books  and  the  reports.2 

§  75.  We  have  seen  that  every  act  must  be  lawful  or 
unlawful  (§  42).  Lawful,  such  as  has  a  legal  excuse ;  un- 
lawful, such  as  has  not  a  legal  excuse.  Acts  done  without 
lawful  excuse  are  said  to  be  done  with  malice  or  to  be 
malicious  acts.  All  acts,  whether  lawful  or  unlawful, 
must  be  voluntary  or  involuntary.3 

1  2  Starkie  on  Libel,  59  ;  Stuart  v.  Lovell,  2  Starkie's  Cas.  93. 

s  How  much  bad  law  and  bad  philosophy  of  law  have  arisen  from  imperfect  com- 
prehension of  the  terms  will,  motive,  intention  and  negligence,  may  be  seen  in  the 
nonsense  of  English  law  writers  concerning  malice.  (Edinburgh  Review,  Oct.,  1863, 
p.  230,  Amer.  Reprint.) 

3  "  I  purposely  abstain  from  the  use  of  the  words  voluntary  and  involuntary,  on  ac- 


118  WBOXGFUL   ACTS.  [Cll.    V. 

§  76.  A  voluntary  act  is  an  act  done  under  no  legal  or 
other  obligation  to  perform  it,  and  which  the  actor  may 
do  or  forbear  at  his  option,  as  an  act  done  in  the  exercise 
of  a  right.  An  act  done  with  a  consciousness  or  knowl- 
edge of  the  character  of  the  act,  or  under  such  circum- 
stances as  that  the  actor  ought  to  know,  and  by  the  exer- 
cise of  a  degree  of  care  proportionate  to  the  exigencies  of 
the  occasion  the  actor  might  know,  the  character  of  the 
act.  A  voluntary  act  does  not  mean  a  mere  act  of  voli- 
tion, but  an  act  of  volition  coupled  with  a  means  of  know- 
ing the  character  of  the  act  about  to  be  performed,  and 
an  intention  to  do  that  very  act.1  It  is  the  act  sometimes 
called  an  intentional  act.  Every  act  is  prima  facie,  and 
without  more,  a  voluntary  act ;  it  is  regarded  for  all  pur- 
poses as  a  voluntary  act  unless  and  until  it  is  shown  to  be 
involuntary.2 

§  77.  An  involuntary  act  is  an  act  done  under  circum- 
stances which  permit  to  the  actor  no  option  as  to  whether 
he  will  do  or  forbear  the  act ;  an  act  done  under  some 
legal  obligation  to  perform  it  as  an  act  done  in  discharge 
of  a  duty ;  an  act  done  under  duress ;  an  act  done  uncon- 
sciously and  without  knowledge  as  to  the  character  of  the 
act,  the  unconsciousness  not  being  self-imposed ;  and  the 
act  done  without  the  opportunity,  by  the  exercise  of  a  de- 
gree of  care  proportioned  to  the  exigency  of  the  occasion, 
of  knowing  the  character  of  the  act. 

§  78.  Besides,  and  in  addition  to  the  intention  of  per- 

count  of  the  extreme  ambiguity  of  their  signification.  By  a  voluntary  act  is  meant 
sometimes  an  act  in  the  performance  of  which  the  will  has  bad  any  concern  at  all — 
in  this  sense,  it  is  synonymous  to  '  intentional' — sometimes  it  means  uncoerced,  and 
sometimes  spontaneous."  (Bentham's  Principles  of  Morals  and  Legislation,  22, 79,  81, 
and  see  2  Austin's  Lect.  Juris.  88.) 

1  "  An  act  of  the  will  is  the  same  as  an  act  of  choosing  or  choice."  (Edwards  on 
the  Will,  pt.  1,  §  1 ;  commented  on  Hazard  on  the  Will,  177.)  As  to  will  and  inten- 
tion, see  Stephen's  Crim.  Law,  76. 

2  "  Men  do  not  act  wholly  without  motive."  (Woodruff,  J.,  Kenedy  v.  The  People, 
39  N.  Y.,  254.) 


§§    79,  80.]  ELEMENTS    OF   A   WKONG.  119 

forming  any  act,  there  may  be  an  intention  in  the  mind  of 
the  actor  to  accomplish,  by  means  of  the  act  done,  certain 
ends,  or  to  produce  certain  consequences.  Passing  over 
the  metaphysical  distinctions  between  will  and  intent  we 
may  draw  a  distinct  line  of  demarkation  between  the  in- 
tent to  do  an  act  and  the  intent  to  'produce  the  consequences 
of  the  act.     This  line  we  draw. 

§  79.  Intent  may  or  may  not,  in  fact,  be  synonymous 
with  motive,  but  we  desire  it  understood  that  we  use  in- 
tent and  motive  as  synonymous.  By  intent  we  mean 
motive,  and  if  the  term  motive  be  employed  instead  of  in- 
tent, it  must  be  divided  as  we  have  divided  intent,  and  a 
distinction  observed  between  the  motive  for  doing  the  act 
and  the  motive  to  produce  the  consequences  of  the  act. 
The  intent  or  motive  which  goes  towards  the  doing  the 
act  we  include  in  the  term  voluntary.  The  intent  or  mo- 
tive which  refers  to  the  consequences  of  the  act  we  denom- 
inate intent  or  intention. 

§  80.  A  voluntary  act  may  be  done  without  any  in- 
tent to  produce  its  consequences,  and  an  involuntary  act 
may  be  done  with  an  intent  to  produce  its  consequences.1 
In  the  cases  in  which  there  exists  any  intent  to  do  more 
than  commit  the  act  itself,  the  intent  may  be  either  to 
produce  all  or  some  of  the  consequences  of  the  act,  or  to 
produce  an  effect  not  a  consequence  of  the  act  done.     As 


1  "  Nor  does  the  nature  of  the  resulting  effect  make  any  difference  to  the  moral 
quality  or  character  of  the  effort.  A  man's  intentions  may  be  most  virtuous,  and  yet 
the  actual  consequences  of  his  efforts  be  most  pernicious.  *  *  The  moral 
nature  of  the  volition  is  not,  then,  in  any  way  affected  by  what  actually  follows  that 
volition."  (Hazard  on  the  Will,  154.)  "Feeling  that  will  implies  intention,  numer- 
ous writers  on  jurisprudence  employ  will  and  intention  as  synonymous.  They  forget 
that  intention  does  not  imply  will.  *         *         *        The  agent  may  not  intend  a 

consequence  of  his  act.  In  other  words,  when  the  agent  wills  the  act,  he  may  not 
contemplate  the  given  event  as  a  consequence  of  the  act  which  he  wills."  (2  Austin's 
Lect.  Juris.  94.)  "  It  is  perfectly  manifest  that  badness  or  goodness  cannot  be 
affirmed  of  the  will,  and  that  a  criminal  intention  may  accord  with  a  good  disposi- 
tion."    (Id.  133.) 


120  WRONGFUL   ACTS.  [Ch.    V. 

one  is  responsible  only  for  the  necessary  and  natural  and 
proximate  consequences  of  his  acts,  at  least  any  intent  to 
produce  any  other  consequence  or  effect  must  be  immater- 
ial. If  the  intent  is  at  all  material,  it  must  be  the  intent 
to  produce  the  necessaiy  and  natural  and  proximate  con- 
sequences of  the  act. 

§  81.  The  various  hinds  of  intents  with  which  an  act 
may  be  done  are  all  resolvable  into  two  classes,  (1)  an  in- 
tent to  injure  some  one,  (2)  an  intent  to  benefit  some  one. 
The  one  to  be  injured  or  benefited  may  be  the  actor  or 
some  other.  One  and  the  same  act  may  be  done  with  an 
intent  to  injure  one  and  benefit  another. 

§  82.  Intent  may  be  divided  into  general  and  partic- 
tdar.  Particular  intent,  or  the  intent  with  which  any 
certain  act  may  be  done,  is  to  be  distinguished  from  the 
general  intent.  One  may  have  a  general  intent  to  injure 
or  benefit  another,  and  synchronously  with  that  intent 
may  do  some  act  concerning  that  other  without  any  refer- 
ence to  the  general  intent,  or  without  any  particular  in- 
tent, or  with  a  particular  intent  different  from  or  contra- 
dictory to  the  general  intent.  As  a  question  of  proba- 
bility, the  particular  intent  will  follow  the  general,  but 
not  necessarily  so  ;  whether  it  does  or  does  not  is  in  every 
case  a  question  of  evidence. 

§  83.  Intent  or  intention  is  a  mental  conception — an 
existence.     It  is  a  fact,1  impalpable,  intangible,  invisible, 


1  The  existence  of  mind  is  as  much  a  matter  of  fact  as  the  existence  of  matter. 
(Elementary  Sketches  of  Moral  Philosophy,  by  Sidney  Smith,  Introductory  Lecture.) 
Intention  is  a  fact.  (Clift  v.  White,  12  N.  Y.  638.)  A  witness  may  be  asked  with 
what  intent  he  did  an  act.  (Seymour  v.  Wilson,  H  N,  Y.  567  ;  Griffin  v.  Marquardt, 
21  N.  Y.  121 ;  Forbes  v.  Waller,  25  N.  Y.  439.)  But  his  evidence  is  not  conclusive. 
(Griffin  v.  Marquardt,  21  N.  Y.  121;  Thurston  t>.  Cornell,  38  N.  Y.  287;  Foster  r. 
Cronkhite,  35  N.  Y.  147.)  And  it  seems  this  question  is  not  permissible  in  certain 
cases,  as  where  the  intent  may  be  or  must  be  inferred  from  the  act.  (The  People  v. 
Saxton,  22  N.  Y.  309  :  Shaw  v.  Stine,  8  Bosw.  161  ;  Ballard  v.  Lockwood,  1  Daly, 
164.)     We  are  not  aware  of  the  right  to  put  the  question  as  to  intent  having  been 


§    84.]  ELEMENTS    OF   A    WRONG.  121 

but  nevertheless  a  fact.  The  existence  or  non-existence  of 
an  intent  or  an  intention  and  its  character  are  always 
questions  of  fact.  Save  the  declarations  of  the  individual 
in  whose  mind  the  intent  is  supposed  to  exist,  we  can 
have  no  direct  testimony  as  to  the  existence  or  non-exist- 
ence of  any  intent,  or  its  character.  Save  such  declara- 
tions we  can  have  none  but  indirect  testimony.  That  in- 
direct testimony  is  the  inference  we  may  draw  from  his 


§  84.  Not  technically,  but  in  reality,  when  the  intent 
is  to  injure  it  is  a  bad  intent,  and  bad  intent  is  malice} 
The  act  by  means  of  which  a  bad  intent  is  sought  to  be 
realized  is  a  inalicious  act,  and  the  act  is  done  maliciously. 


mooted  in  an  action  for  slander  or  libel.  We  suppose  it  could  not  properly  be  put  in 
any  action  for  slander  or  libel,  because  we  are  of  opinion  the  question  of  mere  intent  can 
'  never  be  material  in  those  actions.  But  assuming  that  intent  is  or  may  be  material, 
then  the  question  might  be  put  in  connection  with  a  state  of  facts  which  discloses  a 
qualified  legal  excuse.  In  our  opinion,  the  decisions  show  the  rule  to  be :  you  may 
inquire  into  the  intent,  directly,  as  by  inquiring  of  the  party,  in  cases  where  the  in- 
tent is  material,  and  the  act  complained  of  is  as  consistent  with  a  good  intent  as  with 
a  bad  intent,  but  in  no  other  cases.  (See  supra,  and  Booth  v.  Sweezy,  8  jS".  Y.  281 ; 
Ellis  v.  The  People,  21  How.  Pr.  R.  356 ;  Powis  v.  Smith.  5  B.  <fc  A.  850.)  "Because," 
says  Mr.  Erskine  (Inst,  iv,  4,  80),  "  the  intention  of  the  defender  canaot  always  be 
known  with  certainty,  in  the  trial  of  this  crime  (verbal  injury),  doctors  are  gener- 
ally of  opinion  that  his  oath  in  supplement  may,  in  doubtful  cases,  be  admitted  to- 
wards his  exculpation."     (Borthwick  on  Libel,  1*72,  note.) 

1  The  state  of  a  man's  mind  can  only  be  known  by  others  through  his  acts, 
through  his  own  declarations,  or  through  other  conduct  of  his  own.  (2  Austin's  Lect. 
Juris.  106 ;  Fisk  v.  Chester,  8  Gray,  508.)  Previous  intentions  are  judged  by  subse- 
quent acts.  (Dumont  v.  Smith,  4  Denio,  319,  320.)  The  intention  of  an  act  done 
must  be  judged  by  its  necessary  consequences.  Where  these  are  directly  pernicious 
the  intent  to  work  mischief  becomes  a  conclusion  of  law.  (Safford  v.  Wyckoff,  1 
Hill,  11,  referring  to  Reg.  v.  Boardman,  2  Moo.  &  Rob.  147,  148.)  Where  the  guilt 
or  innocence  of  the  act  depends  upon  the  motive  of  the  actor,  his  conduct  and  dechi ra- 
tions as  to  other  similar  transactions  about  the  same  time  are  always  admissible  to 
show  it.  (Barren  v.  Mason,  31  Verm.  (2  Shaw)  189;  Scanlan  v.  Cowley,  2  Hilton, 
489;  Center  v.  Spring,  2  Clarke  (Iowa),  393.) 

5  "  Hardly  any  word  in  the  whole  range  of  the  criminal  law  has  been  used  in  such 
various  and  conflicting  senses,  nor  is  there  any  which  it  is  more  important  to  under- 
stand correctly."  (Stephen's  Crim.  Law,  81.)  The  etymological  meaning  of  the 
words  malice  and  malicious  is  simply  wickedness  and  wicked  (id.  82),  and  it  will  be 
found  in  practice  impossible  to  attach  to  these  terms  any  other  meaning.  (Id.)  "  I 
9 


122  "WRONGFUL    ACTS.  [Ch.  V. 

§  85.  Upon  reference  to  the  text-books  and  reports  to 
discover  the  meaning  in  use  of  the  terms  intent1  and 
malice  we  find : 

§'  86.  As  respects  the  term  intent,  it  is  sometimes  em- 
ployed to  signify  done  intentionally,  and  in  that  sense  is 
equivalent  to  will,  or  to  what  we  have  designated  volun- 
tary ;  sometimes  employed  to  signify  an  intent  to  produce 
the  consequences  or  some  certain  consequences  by  means 
of  the  act  done,  and  sometimes  employed  to  signify  bad 
intent  or  bad  motive.  When  employed  in  the  sense  of  will 
or  intentionally,  it  is  sometimes  divided  into  express,  tacit, 
presumed,  and  fictitious.2 

§  87.  As  respects  the  term  malice,  it  is  sometimes  em- 
ployed to  signify  the  absence  of  legal  excuse,3  sometimes 


apprehend  that  there  is  no  ground  for  distinguishing  between  the  legal  and  the 
popular  sense  of  the  word,  and  that  it  means  in  its  legal  sense  exactly  what  it  means 
in  its  popular  sense,  namely,  a  mischievous  design  or  intent  to  do  an  injury  to  an 
individual,  or  to  the  public."  (Daly,  F.  J.,  Viele  v.  Gray,  10  Abb.  Pr.  R.  5  ;  18  How. 
Pr.  R.  650.)  The  law  presumes  from  the  act  an  intent  to  bring  about  its  conse- 
quences ;  "  to  denominate  this  intent  malice  or  malice  in  law,  when  it  may  have 
arisen  from  a  good  motive,  the  defendant  believing  what  he  alleges  to  be  true,  is  to 
employ  the  word  malice  in  a  sense  neither  justified  by  its  etymology,  its  ordinary 
meaning,  nor  its  previous  legal  signification."  (Id.)  The  difference  in  the  import  of 
the  word  malice  in  legal  and  in  common  acceptation  is  commented  on,  17  Howell's 
State  Trials,  43,  63.  And  see  Sir  Thomas  Moore's  distinction  between  Mnlitia  and 
Malevolentia  (1  id.  391),  and  remarks  on  the  introduction  of  the  words  Falso  et  mali- 
tiose'mto  indictments  for  libel.     (1  Id.  30;  6  id.  1113.) 

The  term  "  malice,"  it  is  said,  was  formerly  used  in  the  sense  of  "  cunning,"  as  in 
the  following  sentence :  "  It  (the  letter)  seemed  very  sensible,  and  composed  with 
great  malice,  and  in  no  sort  to  be  suspected  of  being  the  letter  of  a  madman.'' 
(Calendar  of  State  Papers,  Domestic  Series  of  the  Reign  of  Charles  the  First.  Lon- 
don Athenaeum,  7  Aug.,  1869,  p.  169.) 

1  "  If  we  would  know  the  nature  of  wrongs,  we  must  try  to  determine  the  mean- 
ing of  intention  and  negligence  with  precision,  for  both  of  them  run  in  a  continued 
vein  through  the  doctrine  of  wrongs,  and  one  of  them,  intention,  meets  us  at  every 
step  in  every  department  of  jurisprudence.  (2  Austin's  Lect.  Juris.  80.)  Unless  the 
import  of  those  terms  are  determined  at  the  outset,  the  subsequent  speculations  will 
be  a  tissue  of  uncertain  talk.     (3  Id.  353.)  v 

2  See  Lindley's  Studies  of  Jurisprudence,  168,  §  187,  and  id.  App.  civ. 

3  Malice,  the  doing  any  act  without  a  just  cause.  (1  Chit.  Gen'l  Pr.  46.)  Malice 
in  its  legal  sense  always  excludes  a  just  cause.      (Jones  v.  Givin,  Gilb.  Cas.  185.)     It 


87.] 


ELEMENTS    OF   A    WRONG.  123 


as  meaning  a  bad  or  wicked  motive  or  intent,1  sometimes 
as  meaning  scienter 2  or  knowingly,  sometimes  as  meaning 
intentionally  or  voluntarily,3  and  often  without  any  defi- 
nite or  ascertainable  meaning  whatever.4  The  term  inalipe  is 

is  a  technical  expression,  and  means  the  absence  of  any  excuse.  (Penn.  v.  Lewis, 
Addison's  R.  282.)  It  is  implied  in  every  [wrongful]  act  for  which  there  is  no  legal 
justification,  excuse,  or  extenuation.  (Penn.  v.  Honeyman,  Addison's  R.  149.)  A  term 
of  law  denoting  directly  wickedness,  and  excluding  just  cause  or  excuse.  (1  Russ. 
Or.  483  )  A  wrongful  act,  done  intentionally,  without  just  cause  or  excuse.  (Brom- 
age  v.  Prosser,  4  B.  &  C.  247.)  If  malice  be  used  as  a  descriptive  term,  it  must  be 
understood  of  malice  in  a  technical  and  artificial  sense  as  merely  signif3'ing  the  ab- 
sence of  any  legal  justification  or  excuse.  (1  Starkie  on  Libel,  3.)  If  malice  be  used 
as  descriptive  *  *  *  it  must  be  understood  in  its  legal  and  technical 
sense  as  merely  denoting  that  which  is  inferred  from  the  doing  of  a  wrongful  act 
without  lawful  justification  or  excuse.  (Id.  213.)  Malice,  the  doing  any  act  injuri- 
ous to  another  without  just  cause.  (Bouvier's  Law  Diet.,  tit.  Malice ;  see  York's  case, 
9  Mete  93  ;  Darry  v.  The  People,  10  N.  Y.  139;  Hilliard  on  Torts,  ch.  vii,  §  106; 
Mitchell  v.  Jenkins,  5  B.  &  A.  590.)  Malice  is  the  deliberate  disregard  of  the  rights 
of  others.     (Abbott,  Ch.  J.,  3  B.  &  C.  584.) 

1  "Malice.  In  criminal  law  and  general  practice,  wickedness  of  purpose;  a  spite- 
ful or  malevolent  design  against  another ;  a  settled  purpose  to  injure  or  destroy  an- 
another.  Any  formed  design  of  doing  mischief.  (1  Hale's  P.  C.  455,  Am.  ed.  note; 
2  Stra.  766.)  Any  evil  design  in  general.  (4  Bl.  Com.  198.)  A  disposition  or  in- 
clination to  do  a  bad  thing.  (2  Rolle's  R.  461.)  General  wickedness  of  heart;  in- 
human or  reckless  disregard  of  the  lives  or  safety  of  others,  a3  when  one  cooly  dis- 
charges a  gun,  or  throws  any  dangerous  missile  among  a  multitude  of  people,  or 
strikes  even  upon  provocation  with  a  weapon  that  must  produce  death.  (4  Bl.  Com. 
199,  200.)  Deliberate  disregard  of  the  rights  of  others,  as  when  one  carries  on  the 
trade  of  melting  tallow  to  the  annoyance  of  the  neighboring  dwellings.  (Abbott,  C. 
J.,  3  B.  &  C.  584 ;  Burrill's  Law  Diet.,  tit.  Malice,  and  see  p.  121,  note  2,  ante.) 

2  "  Maliciously  is  sometimes  equivalent  to  scienter."  (3  Austin's  Lect.  Juris.  327.) 
A  "conscious  violation"  of  law.  (9  CI.  &  Fin.  321  ;  and  Sherwin  v.  Swindall,  12  M. 
&  W.  787.)  In  the  Code  prepared  by  Messrs.  Austin  &  Lewis  for  the  Island  of 
Malta,  they  employ  the  phrase  "culpable  knoivledge"  in  lieu  of  "implied  malice." 
See  Appendix  A.  to  House  of  Lords'  Report  on  Law  of  Defamation,  A.  D.  1843. 

3  If  I  am  arraigned  of  felony,  and  willfully  stand  mute,  I  am  said  to  do  it  of 
■malice,  because  it  is  a  wrongful  act  and  done  intentionally.  (Bayley,  J.,  Bromao-e  v. 
Prosser,  4  B.  <fc  C.  247.)  Any  unlawful  act  done  willfully  is  malicious.  (Common- 
wealth v.  Snelling,  15  Pick.  337.)  In  this  respect,  malice  resembles  a  promise.  A 
promise  may  be  express  or  implied,  but  the  only  difference  between  an  express  and 
implied  promise  is  the  mode  of  proof.  (N.  R'road  v.  Miller,  10  Barb.  260.)  In  an 
action  of  libel,  malice  consists  in  intentionally,  doing  what  is  injurious  to  another, 
falsely  or  without  justifiable  cause,  and  the  presumption  is  against  the  truth  or  justi- 
fiable cause  of  the  publication,  until  the  contrary  h  expressly  proved  by  evidence 
from  the  defendant.     (Hagan  v.  Hendry,  18  Md.  177.) 

4  In  the  English  law,  in  certain  cases  we  have  employed  the  word  malice  to  mean 
intention  generally.     As  malice  implies  intention,   it  has  been  extended  to  cases  in 


124  WRONGFUL    ACTS.  [Ch.   V. 

also  divided  into  malice  in  fact,1  and  express  malice  and 
implied  malice?  Probably  the  phrase  implied  malice  is 
identical  with  the  phrase  malice  in  law,  and  the  phrase 
express  malice  with  the  phrase  malice  in  fact ;  for  among 
the  definitions  we  find  malice  in  law  defined  as  "The 


which  there  is  no  malice.  As  I  shall  show,  it  does  not  denote  the  motive.  And  it  is 
manifest  that  the  motive  to  a  criminal  action  may  be  laudable.  The  intention  of  an 
act,  suggested  by  a  blamable  motive,  lawful.  (2  Austin's  Lect.  Juris.  110.)  It  hav- 
ing been  assumed  inconsiderately  that  malice  or  criminal  design  is  of  the  essence  of 
every  crime,  the  term  is  extended  abusively  to  negligence  *  *  *  it  is 
often  confounded  with  malice,  as  denoting  malevolence,  insomuch  that  malevolence 
(though  the  motive  or  inducement  of  the  party  is  foreign  to  his  guilt  or  innocence)  is 
supposed  to  be  essential  to  the  crime.  (3  Id.  327.)  Malice  has  also  been  defined  "  as 
the  plain  indication  of  a  heart  regardless  of  social  duty,  and  fatally  bent  on  mis- 
chief "(U.  S.  v.  Cornell,  2  Mason,  60);  improper  motives  (YVeekerly  v.  Geyer,  1  S.  & 
R.  35);  willfulness  (Dexter  v.  Spear,  4  Mason,  115;  Holt  on  Libel,  55);  a  design 
formed  of  doing  mischief  to  another  (Reg.  v.  Mawgridge,  Kely.  R.  127) ;  any  wicked 
or  mischievous  intention  of  the  mind  (Rex.  v.  Harvey,  2  B.  <fc  C  257).  Malice,  as 
applied  to  torts,  does  not  necessarily  mean  that  which  must  proceed  from  a  spiteful, 
malignant,  or  revengeful  disposition,  but  a  conduct  injurious  to  another,  though  pro- 
ceeding from  an  ill-regulated  mind  not  sufficiently  cautious  before  it  occasions  an  in- 
jury to  another.  (11  S.  <fe  R.  39,  40.)  Indeed,  in  some  cases  it  seems  not  to  require 
any  intention  in  order  to  ni'ike  an  act  malicious.  When  slander  has  been  published, 
therefore,  the  proper  question  for  the  jury  is  not  whether  the  intention  of  the  publica- 
tion was  to  injure  the  plaintiff,  but  whether  the  tendency  of  the  matter  published  was 
so  injurious.  (10  B.  &  C.  472 ;  s.  c.  21  E.  C.  L.  Rep.  117 ;  and  see  3  B.  &  C.  584 ;  8. 
c.  10  E.  C.  L.  Rep.  179.     Bouvier's  Law  Diet,  voce  Malice.) 

1  Malice  "  has  been  sometimes  divided  into  legal  malice  or  malice  in  law,  and 
actual  malice  or  malice  in  fact.  These  terms  might  seem  to  imply  that  the  two  kinds 
of  malice  are  different  in  their  nature.  The  true  distinction,  however,  is  not  in  the 
malice  itself,  but  simply  in  the  evidence  by  which  it  is  established.  In  all  ordinary 
cases,  if  the  charge  complained  of  is  injurious,  and  no  justifiable  motive  for  making 
it  is  apparent,  malice  is  inferred  from  the  falsity  of  the  charge.  The  law  in  such 
cases  does  not  impute  malice  not  existing  in  fact,  but  presumes  a  malicious  motive  for 
making  a  charge  which  is  both  false  and  injurious  when  no  other  motive  appears. 
When,  however,  the  circumstances  show  that  the  defendant  may  reasonably  be  sup- 
posed to  have  had  a  just  and  worthy  motive  for  making  the  charge,  then  the  law  ceases 
to  infer  malice  from  the  mere  falsity  of  the  charge,  and  requires  from  the  plaintiff  other 
proof  of  its  existence.  It  is  actual  malice  in  either  case,  the  proof  only  is  different." 
(Selden,  J.,  Lewis  v.  Chapman,  16  N.  Y.  372.)  The  jury  may  infer  malice  from  want 
of  probable  cause,  but  they  are  not  bound  to  make  this  inference.  And  if  malice  is 
deduced  from  want  of  probable  cause,  it  is  as  much  malice  in  fact,  within  the  meaning 
of  the  law,  as  though  shown  or  deduced  from  any  other  fact  or  facts.  (Smith  v. 
Howard,  Supreme  Court,  Iowa.) 

2  The  distinction  between  express  and  implied  malice  is  well  illustrated  in  the 
argument  of  that  distinguished  lawyer.  Nicholas  Hill,  in  Darry  v.  The  People,  10  N. 
Y.  123,  as  thus:  The  term,  express  malice,  originally  meant  malice  proved  independ- 


§  87.]  ELEMENTS    OF   A    WRONG.  125 

malice  which  is  inferred  from  the  doing  a  wrongful  act 
without  lawful  justification  or  excuse."1  The  distinction 
between  malice  in  law  and  malice  in  fact  is  sujyposed  to 
consist  in  this,  that  the  one  is  inferred  and  the  other  is 
proved.  The  attempted  distinction  is  unreal  and  unsound ; 
there  is  no  distinction  between  what  is  inferred  and  what 
is  proved — what  is  supposed  to  be  rightly  inferred  is 
proved.  "  We  say  of  fact,  it  is  proved  when  we  believe  its 
truth  by  reason  of  some  other  fact  from  which  it  is  said 
to  follow." 2  Some  judges  have  avoided  this  objection  by 
denying  that  malice  in  law  is  a  question  of  fact,  and  styl- 
ing it  a  conclusion  of  law  not  required  to  be  proved,  and 
not  permitted  to  be  denied.3     If  malice  in  law  is  a  con- 


ently  of  the  mere  act  from  which  death  resulted,  and  implied  malice  the  reverse. 
They  therefore  described  only  different  modes  of  proving  actual  guilt,  not  different 
degrees  of  it;  and  they  belonged  to  the  law  of  evidence,  not  to  a  definition  of  homi- 
cide. They  did  not  even  indicate  different  degrees  of  evidence,  both  kinds  when 
sufficient  being  conclusive  until  overcome.  And  they  were  applicable  to  every  case 
where  proof  of  the  actual  intent  was  requisite  to  characterize  an  offence."  He  sup- 
ports these  views  by  a  profuse  citation  of  authorities.  The  opinions  in  this  case 
should  be  perused  by  those  who  desire  information  on  the  subject  of  implied 
malice. 

1  1  Starkie  on  Libel,  213. 

2  Mill's  Logic,  b.  2,  c.  1,  §  1. 

3  "  The  malicious  intent  of  the  publication  is  not  a  question  of  fact,  but  a  conclu- 
sion of  law.  It  is  the  intent  which  the  law  implies,  and  which  the  plaintiff  is,  there 
fore,  not  required  to  prove,  nor  the  defendant  permitted  to  deny."  (Duer,  J.,  Fry  v. 
Bennett,  1  Code  Rep.  N  S.  243  ;  5  Sandf.  54.)  The  only  case  in  which  malice  may 
be  proved  is  where  privilege  is  pleaded.  (Root  v.  Lowndes,  6  Hill,  520  ;  Washburn 
v.  Cook,  3  Denio,  112;  Howard  v.  Sexton,  4  N.  Y.  15*7.)  "Malice,  so  far  as  the  law 
requires  it  to  sustain  the  action,  is  implied  from  the  publication  of  that  which  is  untrue 
— the  law  presuming  it  to  exist  in  such  a  case.  Therefore,  express  malice  in  not  required 
to  sustain  the  action."  (Littlejohn  v.  Greeley,  13  Abb.  Pr.  R.  55.)  "  It  is  said  that 
malice  is  involved  in  the  issue.  *  *  The  answer  to  this  suggestion  is, 
that  in  the  action  of  slander,  except  in  cases  of  privileged  communications,  express 
malice  forms  no  part  of  the  issue.  Legal  malice  only  is  affirmed  or  denied,  and  this 
results  from  proof  of  the  transaction  *  *  *  which  the  law  pronounces 
wrongful,  and  therefore  malicious. — 2  Greenl.  Ev.  §§  410,  518,  421."  (Gardiner,  J. 
Howard  v.  Sexton,  4  N.  Y.  160.)  "In  an  ordinary  action  for  a  libel  or  for  words, 
though  evidence  of  malice  may  be  given  to  increase  the  damages,  it  never  is  consid- 
ered as  essential,  nor  is  there  any  instance  of  a  verdict  for  the  defendant  on  the  ground 
of  a  want  of  malice."  (Mansfield,  Ch.  J.,  Hargrave  v.  De  Breton,  4  Burr.  2425,  re- 
peated by  Bayley,  J.,  in  Bromage  v.  Prosser,  4  B.  &  C.   247;  6  Dowl.  &  R.  296.) 


126  WRONGFUL    ACTS.  [Ch.    V. 

elusion  of  law,  then  is  malice  in  fact  a  conclusion  of  law ; 
and  if  this  be  so,  it  is  still  true  that  they  are  not  dis- 
tinguishable the  one  from  the  other.  Whether  malice  in 
fact  is  here  employed  in  the  sense  of  want  of  legal  excuse 
or  in  the  sense  of  bad  intent  is  immaterial  on  this  point. 
The  non-existence  of  legal  excuse  in  the  one  case,  and  the 
existence  of  bad  intent  in  the  other  can  be  proved  only 
by  inference.  No  argument  can  make  it  more  clear  than 
the  mere  statement  that  the  non-existence  of  a  legal  ex- 
cuse does  not  admit  of  direct  proof,  and  can  be  proved 
only  by  inference.  As  to  the  proof  of  malice  in  fact  or 
of  a  bad  intent,  we  have  already  considered  how  intent 
may  be  proved  (§  83) ;  and  from  the  nature  of  the  sub- 
ject it  will  conclusively  appear  that,  inasmuch  as,  at  the  time 
when  this  division  of  malice  took  place  parties  to  a  trans- 
action were  not  allowed  to  testify,  there  could  at  that 
time  be  none  other  than  indirect  evidence  of  bad  intent 
or  malice.  At  that  time  the  existence  of  bad  intent  or 
malice  could  be  proved  in  no  other  manner  than  by  in- 
ferring it  from  the  acts  or  declarations  of  the  actor,  or  by 
the  like  means  as  the  proof  of,  so  called,  malice  in  law. 

§  88.  Pursuing  the  subject,  and  upon  reference  to  the 
text-books  and  reports  to  ascertain  whether  intent  and 
malice  are  elements  of  a  wrong,  we  find  some  authors  and 
judges  laying  down  the  rule  that  intent,  meaning  bad  in- 
tent, is  the  essential  ingredient  of  every  wrong,1  and  this  is 

Others  say  malice  must  be  proved.  "The  jury  have  no  more  right  to  find  malice  in 
the  defendant,  without  sufficient  evidence,  than  they  have  to  find  any  other  fact  in  the 
plaintiff's  favor  without  proof."  (Woodruff,  J.,  Liddle  v.  Hodges,  2  Bosw.  544.)  And 
see  Dolloway  v.  Turrell,  26  Wend.  396;  Cooke  on  Defamation,  ch.  iv. 

1  Every  wrong  supposes  intention  or  negligence  on  the  part  of  the  wrong-doer. 
(2  Austin's  Lect.  Juris.  2.)  Intention,  negligence,  heedlessness,  or  rashness,  is  of  the 
essence  of  a  wrong,  is  a  necessary  condition  precedent  to  the  existence  of  guilt  (Id. 
144.)  Guilt  imports  that  the  party  has  broken  a  duty  [Id.  147,  149) ;  it  denotes  the 
intention,  and  connotes  the  act,  forbearance,  or  omission,  which  was  the  effect  of  his 
intention  (Id.  147) ;  and  at  p.  165 :  Unlawful  intention  or  unlawful  inadvertence  is  of 
the  essence  of  injury.  And  on  examining  the  grounds  of  exemption  from  liability, 
we  find  the  party  is,  or  is  presumed  to  be,  clear  of  intention  or  inadvertence ;  and 


•] 


ELEMENTS    OF   A    WRONG.  127 


so  universally  conceded  that  all  collections  of  legal 
maxims  include  this :  "  Actus  non  facit  reum,  nisi  mens 
sit  rea;"  which  is  tranlated:  "An  act  does  not  make 
guilty,  unless  the  mind  be  guilty  " — that  is,  unless  the  in- 
tention be  criminal ;  others  assert  that  intent  is  immaterial 
in  civil  actions,  except  in  the  civil  actions  for  slander  and 
libel ; *   others  that  intent  is  immaterial  in   slander  and 


(p.  108)  the  ultimate  ground  of  exemption  for  ignorance  or  error  of  fact  is,  the  absence 
of  unlawful  intention  or  unlawful  inadvertence.  At  p.  179:  An  infant  or  a  person 
insane  is  exempted  from  liability,  not  because  he  is  an  infant  or  insane,  but  because 
it  is  inferred  from  his  infancy  or  insanity  that  the  wrong  was  not  the  consequence  of 
unlawful  intention  or  inadvertence;  and  (p.  185)  the  reason  assigned  by  Black- 
stone  and  other  writers  is  hardly  worth  powder  and  shot.  He  tells  us  that  a 
wrong  is  the  effect  of  a  wicked  will.  And  (says)  infants  and  madmen  are  exempted, 
because  the  act  goes  not  with  their  will,  or  is  not  imputable  to  a  wicked  will. 
*  *  *  He  cannot  mean  to  affirm  that  an  infant  or  madman  has  not  as  much 
will  as  the  adult  or  the  sane.  [It  must  be  observed  that  Austin  makes  a  distinction 
between  will  and  motive.  By  will,  if  we  interpret  him  aright,  he  intends  only  the 
mere  act  of  volition.] 

Intent  is  the  essence  of  crime.  (Krom  v.  Schoonmaker,  3  Barb.  647.)  The  crim- 
inality of  the  act  depends  altogether  upon  the  intent  with  which  it  was  done.  (Genet 
v.  Mitchell,  7  Johns.  120 ;  and  see  2  Starkie  on  Ev.,  tit.  Intention;  5  Amer.  Q'rly  Rev. 
79.) 

1  See  Burrill's  Law  Diet.,  tit.  Actus,  where  he  adds:  The  intent  and  the  act  must 
both  concur  to  constitute  the  crime.  (Kenyon,  Ch.  J.,  7  T.  R.  514 ;  Broom's  Max.  144.) 
This  maxim  is  exclusively  applicable  to  criminal  law,  and  to  civil  proceedings  for 
slander  and  libel;  in  [qy.  other]  civil  actions,  the  intent  is  immaterial  if  the  act  done 
be  injurious  to  another.  (Id.  155,  161.)  The  maxim,  "Affectio  tua  nomen  imponit  operi 
tuo,"  [your  disposition  or  intention  gives  name  or  character  to  your  work  or  act] 
embodies  the  same  principle.  (Bract,  fo.  101  b.)  See  Broom's  Maxims,  tit.  Actus  non 
facit,  &c,  where  he  says:  With  respect  to  libel  and  slander  the  rule  is  *  *  * 
where  an  occasion  exits  which,  if  fairly  acted  upon,  furnishes  a  legal  protection  to 
the  party  who  makes  the  communication  complained  of,  the  actual  intention  of  the 
party  affords  a  boundary  of  legal  liabilit}?.  See  also  Burrill's  Law  Diet.  tit.  Voluntas, 
citing  Voluntas  et  propositum  disting aunt  malejicia — Will  and  purpose  characterize 
crimes.  Crimen  non  contrahitur,  nisi  voluntas  nocendi  intercedat — Crime  is  not  con- 
tracted unless  the  intention  of  doing  harm  be  present.  Tolle  voluntatem  et  eris  omnis 
actus  indifferens.     Take  away  will  and  every  act  becomes  indifferent. 

We  cannot  pass  the  quotation  of  a  so-called  law  maxim  without  entering  our  protest 
against  their  reception  as  legal  axioms.  We  believe  that  not  a  single  law  maxim  can 
be  pointed  out  which  is  not  obnoxious  to  objection.  The  old  law  maxims  must  be  put 
aside  or  forgotten,  or  remembered  only  as  things  of  the  past  and  dead,  even  a9  we 
have  put  aside  and  forgotten  maxims  in  science,  supplying  their  places  with  maxims 
drawn  from  a  larger  experience  and  more  philosophical  analysis.  "  Perhaps  there  is 
a  period  in  every  system  of  law  previous  to  which  the  formation  of  maxims  will  be 
productive  of  bad  effects,  as  leading  to  the  establishment  of  principles  which  it  is  not 


128  WRONGFUL    ACTS.  [CL    V. 

libel,  or  immaterial  except  under  certain  circumstances ; 
and  others,  that  the  essential  element  of  a  slander  or  a 
libel  is  malice  or  a  malicious  intent,  the  mind  must  be  in 


permitted  to  controvert,  but  which  more  enlightened  views  would  repudiate." 
(Fortesque  de  Laudibus,  &c,  ch.  viii,  note  to  edition  by  Amos.  See  Dodderidge's 
English  Lawyer ;  Doctor  and  Student,  Dialogue  I,  ch.  viii,  ix  ;  Bacon's  Preface  to  his 
Maxims.)  The  benefit  which  science  has  received  from  the  use  of  maxims  is  of  a 
questionable  nature,  and  the  adoption  of  these  is  of  a  questionable  nature  whenever 
the  ideas  are  confused.  (Locke  on  the  Understanding,  B'k  IV,  ch.  vii.)  In  Bonomi 
v.  Backhouse  (27  Law  Jour.  IS".  S.  388,  Q.  B.),  Erie,  J.,  says:  "The  maxim,  s>c  utere 
tuo  ut  alienum  non  Icedas,  is  mere  verbiage.  A  party  may  damage  the  property  of 
another  where  the  law  permits,  and  he  may  not  where  the  law  prohibits;  so  that  the 
maxim  can  never  be  applied  until  the  law  is  ascertained,  and  when  it  is,  the  maxim 
is  superfluous."  And  in  Jenkins  v.  Wheeler  (4  Robertson,  575),  the  court  held  that 
the  maxim,  Freight  is  the  mother  of  wages,  is  not  universally  true. 

1  The  secret  intention  of  the  publisher  is  immaterial  (Hankinson  v.  Bilby,  10  M.  A 
W.  442.)  "  It  is  an  error  to  suppose  that  motive,  except  where  the  words  are  privi- 
leged, is  in  any  way  essential  to  a  cause  of  action."  The  motive  of  the  defendant  is 
wholly  immaterial  as  respects  the  right  of  action.  The  motive  may  be  a  good  or  a 
bad  one.  (Daly,  F.  J.,  Viele  v.  Gray,  10  Abb.  Pr.  R.  6,  7 ;  18  How.  Pr.  R.  550.)  In 
an  action  brought  by  A  against  B  for  slandering  the  title  of  the  former  to  certain 
slaves  by  him  exposed  to  public  sale,  a  verdict  was  found  for  him  ;  B  brought  his  bi.l 
praying  for  relief,  and  an  injunction  against  the  verdict,  and  it  was  held  that  as  the 
loss  in  the  sale  of  the  slaves  was  caused  by  B,  even  though  he  was  believed  to  have 
designed  no  injury,  he  was  bound  to  make  reparation,  and  his  bill  was  dismissed. 
(Ross  v.  Pines,  Wythe,  71.)  There  is  no  instance  of  a  verdict  for  the  defendant  on 
the  ground  of  want  of  malice.  (Mansfield,  Ch.  J.,  Hargrave  v.  Le  Breton,  4  Burr. 
2425;  repeated  by  Bailey,  J.,  Bromage  v.  Prosser,  4  B.  &  C.  247.)  If  I  give  a  man 
slanderous  words,  whereby  I  damnify  him  in  his  name  and  credit,  it  is  not  material 
whether  I  use  them  upon  sudden  choler  and  provocation,  or  of  set  malice,  but  in  an 
action  upon  the  case  I  shall  render  damages  alike.  (Bacon's  Maxims  of  the  Law, 
Regula  VII.) 

The  intent  with  which  an  act  is  done  is  by  no  means  the  test  of  the  liability  of  a 
party  to  an  action  of  trespass.  (Guille  v.  Swan,  19  Johns.  381 ;  Percival  v.  Hickey> 
18  id.  257;  Tremain  v.  Cohoes  Co.,  2  N.  Y.  164;  Ruckman  v.  Cowell,  1  X.  Y.  :,<)7 ; 
Safford  v.  Wyckoff,  1  Hill,  11.)  Bona  fides  will  not  protect  a  magistrate  who  does 
an  illegal  act.  (Prickett  v.  Greatrex,  1  New  Mag.  Cas.  543;  7  Law  Times,  139.)  It 
is  immaterial  with  what  motive  a  man  does  a  legal  act.  (Humphrey  v.  Douglass,  11 
Verm.  R.  22);  and  so  of  an  unlawful  act.  (Amick  v.  OTIara,  6  Blackf.  258.)  Inten- 
tion held  to  be  immaterial.  (Bullock  v.  Babcock,  3  Wend.  391 ;  Baker  v.  Bailey,  16 
Barb.  60.)  Intent  immaterial  if  the  words  are  a  libel.  (People  v.  Freer,  1  Caines' 
Rep.  485.)  In  a  private  action  for  libel  the  motives  are  out  of  the  question.  (Root 
v.  King,  7  Cow.  633.)  If  the  words  are  not  actionable  per  se,  and  have  not  occasioned 
any  special  damage,  no  amount  of  malice  in  the  publisher  will  make  them  actionable. 
(Kelly  v.  Partington,  3  Nev.  &  M.  116;  5  B.  &  Adol.  645 ;  and  see  2  Xev.  <fc  M.  460; 
4  B.  &  Adol.  700.)  "  Bad  motives  in  doing  an  act  which  violates  no  legal  right  of 
another,  cannot  make  that  act  a  ground  of  action."  (Pickard  v.  Collins,  23  Barb. 
459.)  If  the  fact  be  justified,  the  motive,  intention,  and  manner  are  immaterial. 
(Burr.  807.) 


§88.] 


ELEMENTS    OF    A    WRONG.  129 


fault;1  and    some    expressly,  and   some-  by  implication, 
assert  that  this  fault    in   the   mind,  this  bad  intent   or 


Where  an  act  in  itself  indifferent  if  done  with  a  particular  intent  becomes  crim- 
inal, there  the  intent  must  be  proved  and  found  ;  but  when  the  act  is  in  itself  unlaw- 
ful (i.  e.  prima  facie  and  unexplained),  the  proof  of  justification  or  excuse  lies  on  the 
defendant,  and  in  failure  thereof  the  law  implies  a  criminal  intent ;  in  the  latter  case 
the  intention  is  immaterial,  and  therefore  not  a  question  of  fact  in  issue,  for  the  crime 
consists  in  publishing  a  libel :  "  a  criminal  intention  in  the  writer  is  no  part  of  the 
definition  of  the  crime  of  libel  at  the  common  law."  Per  Lord  Mansfield,  in  Woodfall's 
case,  the  words  quoted  are  from  the  opinion  of  the  twelve  English  judges  delivered 
in  the  House  of  Lords  upon  questions  put  to  them  on  the  subject  of  libel.  (Journals 
of  the  House  of  Lords,  1792,  Appendix  27;  and  22  Howell's  State  Trials,  300 ;  The 
People  v.  Crosswell,  3  Johns.  Cas.  364.)  Except  in  the  cases  of  privileged  communi- 
cations, express  malice  forms  no  part  of  the  issue.  (Howard  v.  Sexton,  4  N.  Y.  157, 
and  see  p.  125,  note  3,  ante.)  "  In  which  case  [privileged  communication]  express  malice 
must  be  shown,  while  in  other  cases  express  malice  forms  no  part  of  the  issue.  Thorn 
v.  Moser,  1  Denio,  488 ;  The  State  v.  Burnham,  9  N.  Hamp.  34 ;  Howard  v.  Sexton,  4 
N.  Y.  157."  (W.  F.  Allen,  J.,  Bush  v.  Prosser,  11  N.  Y.  355;  see  id.  p.  358,  and  the 
next  following  note.) 

1  "To  constitute  that  injury  [slander]  malice  must  be  proved,  not  mere  general 
ill-will,  but  malice,  in  the  special  case  set  forth  in  the  pleadings,  to  be  inferred  from 
it  and  the  attending  circumstances."  (Gardiner,  J.,  Howard  v.  Sexton,  4  N.  Y.  161; 
quoted  and  approved  by  Rosekrans,  J.,  Fry  v.  Bennett,  28  N.  T.  328 ;  and  by  W.  F. 
Allen,  J.,  Bush  v.  Prosser,  11  N.  Y.  357.)  "Malice  is  essential  to  every  action  for 
libel."  (Selden,  J.,  Lewis  v.  Chapman,  16  N.  Y.  372.)  "  In  all  cases  malice  is  essen- 
tial to  the  action.  Not  imputed  malice  merely,  but  actual  malice,  malice  established 
by  proof."  (Selden,  J.,  Bush  v.  Prosser,  11  N.  Y.  358.)  To  maintain  the  action  there 
must  be  :  "  (1)  malice  in  the  defendant;  (2)  injury  to  the  plaintiff;  (3)  that  the  words 
should  be  untrue."  (Ellenborough,  Ch.  J.,  Maitland  v.  Goldney,  2  East,  426.)  The 
malice  of  the  publication,  or  the  intent  to  defame  the  reputation  of  another,  is  the 
essence  of  the  offence  of  libel.  (Com'wealth  v.  Clapp,  4  Mass.  R.  163;  Com'wealth  v. 
Snelling,  15  Pick.  337.)  In  order  to  render  the  publisher  amenable  to  the  law,  the  pub- 
lication must  be  maliciously  made,  but  malice  will  be  presumed  if  the  matter  be  libelous. 
(Bouvier's  Law  Diet,  voce  Publisher.)  "  The  criminality  of  the  charge  in  the  indict- 
ment consisted  in  a  malicious  and  seditious  intention.  There  can  be  no  crime  without 
a  wicked  mind."  (Kent,  J.,  The  People  v.  Crosswell,  3  Johns.  Cas.  364) ;  and  "  as  a 
libel  is  a  defamatory  publication  made  with  a  malicious  intent.  {Id.  377.)  The  injury 
consists  in  "falsely  and  maliciously"  charging  another  with,  &c.  (Kent's  Com.,  Part 
IV,  sect.  24,  p.  706,  of  vol.  I,  11th  ed.,  and  id.  p.  617.)  "The  essential  ground  of 
action  for  defamation  consists  of  the  malicious  intention,  and  when  the  mind  is  not  in 
fault,  no  prosecution  can  be  maintained ; "  and  the  story  recited  from  Fox's  Martyr- 
ology,  in  Brook  v.  Montague,  Cro.  Jac.  91,  is  referred  to.  "  The  mind  must  be  in  fault 
and  show  a  malicious  intention  to  defame."  (Kenyon,  J.,  Rex  v.  Abingdon,  1  Esp. 
226.)  "By  the  law  of  England,  malice  is  an  essential  ingredient  in  every  action  on 
the  case  for  slander."  (Borthwick  on  Libel,  194.)  And  in  a  note  (id.)  attributed  to 
Starkie,  it  is  said :  Every  definition  of  the  subject-matter  of  an  action  for  slander,  to 
be  found  in  the  books  of  reports  or  elementary  writers,  includes  malice  as  an  essential 
ingredient.     Malice  is  the  gist  of  the  action  for  slander.     (McKee  v.  Ingalls,  4  Scam. 


130  WRONGFUL     ACTS.  [Ch.    V. 

malice,  must  be,  in  fact  or  impliedly,  in  the  mind  of  the 
defendant  in  the  action.  And  the  divisions  of  will  and 
of  malice  heretofore  referred  to  (§§  86,  87)  appear  to 
have  been  designed  to  meet  this  requirement  in  those 
cases  in  which  there  is  no  pretence  of  any  bad  intent,  or 


30;  White  v.  Nicholls,  3  How.  U.  S.  Rep.  266.)  There  must  be  a  mischievous  inten- 
tion. (George  on  Libel,  162.)  The  guilt  [gist]  of  and  essential  ground  of  action  for 
defamation  consists  in  the  malicious  intention,  and  when  the  mind  is  not  in  fault,  no 
prosecution  can  be  maintained.  (2  Kent's  Com.  26 ;  W.  F.  Allen,  J.,  Bush  v.  Prosser, 
11  N.  Y.  355.)  In  the  trial  of  the  Seven  Bishops,  Justices  Holloway  and  Powell  both 
say,  to  make  a  libel  it  must  be  malicious.  "  The  main  question  is,  qv*>  animo  the 
defendant  published  the  article  complained  of.  *  *  *  The  plaintiff  is 
bound  to  show  that  the  defendant  was  actuated  by  malice."  (Ellenborough,  Chief  J., 
Tabart  v.  Tipper,  1  Camp.  350,  351.)  "The  gist  of  an  action  of  slander,  for  words 
in  themselves  actionable,  is  the  malice  which  produced  them;  take  away  this,  and  the 
suit  is  not  maintainable  in  any  shape."  (Rossell,  J.,  Cook  v.  Barkley,  1  Penn.  N.  J. 
Rep.  180,  and  p.  183  per  Pennington,  J.)  "The  quo  animo  with  which  the  words 
were  spoken  was  the  point  in  issue,  as  malice  constitutes  the  gist  of  the  action."  "  It 
is  said  there  need  be  no  express  malice  except  in  the  case  of  privileged  communica- 
tions, that,  in  other  words,  implied  or  legal  malice  is  all  that  is  required.  What  is 
meant  by  implied  malice  ?  Does  it  mean  malice  which  the  law  imputes  without  any 
proof  of  its  existence?  I  apprehend  not.  It  means  this:  that  the  fact  that  the  de- 
fendant is  shown  to  have  published  a  false  charge  against  another  which  was  calculated 
to  injure  him,  proves  that  the  defendant  was  actuated  by  malicious  motives,  unless  the 
circumstances  are  such  as  to  suggest  some  other  and  innocent  motive.  This  is  nothing 
more  than  the  application  of  a  familiar  rule  of  evidence,  viz ,  that  every  person  is 
presumed  to  intend  that  which  is  the  natural  consequence  of  his  actions.  *  *  * 
But  is  malice  any  more  the  ground  of  the  action  in  cases  of  privileged  communica- 
tion than  in  others  ?  Clearly  not.  It  is  called,  for  the  sake  of  convenience  express 
malice,  in  the  one  case,  and  implied,  in  the  other ;  but  the  malice  is  the  same,  the 
difference  is  in  the  proof  alone.  We  may,  therefore,  assume  that  in  all  cases  malice  is 
essential  to  the  action.  Not  imputed  malice  merely,  but  actual  malice ;  malice  estab- 
lished by  proof."  (Selden,  J.,  Bush  v.  Prosser,  11  N.  Y.  358.)  In  actions  for  slander, 
it  is  of  the  essence  of  the  action  that  the  words  be  spoken  maliciously.  (Jarvis  v. 
Hatheway,  3  Johns.  180.)  No  doubt  but  malice,  as  well  as  falsehood,  is  essential  to 
sustain  an  action  of  slander.     (Thorn  v.  Blanchard,  5  Johns.  529.) 

The  case  of  Mercer  v.  Sparks  (Owen,  51 ;  Noy,  35)  was  cited  in  McPherson  v. 
Daniels  (10  B.  &  Cr.  266)  as  an  authority  for  the  proposition  that,  in  an  action  for 
slander,  malice  need  not  be  alleged  ;  but  per  Parke,  J.,  "  that  was  after  verdict,  and 
malice  must  have  been  proved  at  the  trial."  Malice  "may  be  said  to  be  a  necessary 
ingredient,  in  one  form  or  other,  of  all  crimes  whatever."  (Stephen's  Crim.  Law,  81.) 
As  to  necessity  of  proving  malice  in  actions  for  slander  and  libel,  see  George  on  Libel, 
149;  Jones  on  Libel,  8,  9,  11,  14,  Comyn's  Dig.  Action  for  Defamation,  G;  Smith  v. 
Ashley,  11  Met.  486 ;  McCorkle  v.  Binns,  5  Binney,  340  ;  Coxhead  v.  Richards,  2  C.  B. 
608 ,  Lillie  v.  Price,  5  Ad.  &  El.  645 ;  Harwood  v.  Astley,  4  Bos.  &  Pul.  47 ;  and  Hastings 
v.  Lusk,  22  Wend.  416 ;  Steele  v.  Southwick,  9  Johns.  214 ;  Root  v.  King,  4  Wend.  113 ; 
1  Saund.  243,  note  4.) 


§    88.]  ELEMENTS    OF    A    WRONG.  131 

no  possibility  of  any  bad  intent  in  the  mind  of  the  de- 
fendant in  the  action.  There  will  be  no  necessity  for  any 
such  division  of  will  or  malice,  if  the  distinction  between 
the  wrong  and  the  liability  be  observed  (§  66).  At  the 
same  time  that  courts  hold  malice,  meaning  bad  intent,  to 
be  a  necessary  ingredient  of  slander  and  libel,  they  hold 
that  it  is  not  absolutely  necessary  to  allege  malice  in  a 
declaration,1  and  that  the  introduction  of  an  allegation  of 
malice  in  a  declaration  for  libel  is  "  rather  to  exclude  the 
supposition  that  the  publication  had  been  made  on  some 
innocent  occasion,  than  for  any  other  purpose."2  And 
except  to  aggravate  the  damages,  courts  will  not  allow, 
on  a  trial,  any  evidence  of  malice  (bad  intent)  in  addition 
to  that  which  is  said  to  be  inferred,  until  evidence  has 
been  given  which  countervails  or  reverses  the  so-called 
presumption  of  malice,  or  malice  in  law ; 3  nor  will  they 
allow  this  presumption,  nor  malice  in  fact,  to  be  contra- 
dicted by  any  mere  denial,  or  shown  not  to  exist  by 
proving  an  actual  good  intent.  They  permit  but  one  way 
of  evading  this  malice  in  law,  and  that  is  by  showing  the 
existence  of  a  legal  excuse  for  the  act  of  publication.  If 
the  legal  excuse  shown  be  a  prima  facie  one  only,  its 
effect  is  merely  to  remove  the  alleged  presumption  of 
malice,  and  raise  an  alleged  presumption  of  absence  of 
malice,  and,  as  it  is  said,  require  the  plaintiff  to  show 
malice  in  fact.  This  very  intricate  course  of  procedure 
arises  from  erroneously  treating,  in  practice,  as  an  affirm- 

1  In  a  complaint  for  libel,  it  is  not  necessary  to  aver  express  malice.  (Purely  v. 
Carpenter,  6  How.  Pr.  R.  366.)  Maliciously  need  not  be  used,  if  words  of  an  equivalent 
import  are  used.  (White  v.  Nicholls,  3  How.  U.  S.  Rep.  266  ;  Opdyke  v.  Weed,  8  Abb. 
Pr.  R.  223  ;  Viele  v.  Gray,  10  id.  6.)  The  omission  is  cured  by  verdict.  (McPherson 
v.  Daniels,  10  B.  &  C.  266 ;  Taylor  v.  Kneeland,  1  Doug.  67.)  Wrongfully  and  injuriously 
are  not  equivalent  to  maliciously.     (De  Medina  v.  Grove,  10  Jur.  426.) 

3  Abbott,  Ch.  J.,  Duncan  v.  Thwaites,  3  B.  &  C.  585. 

3  In  the  adjustment  of  damages,  malice  [bad  intent]  may  become  an  element. 
(Viele  v.  Gray,  10  Abb.  Pr.  R.  6 ;  18  How.  Pr.  R.  566  ;  Root'*;.  King,  7  Cow.  633 ;  Fry 
v.  Bennett,  28  N.  Y.  32T ;  s.  c.  3  Bosw.  200 ;  Taylor  v.  Church,  1  E.  D.  Smith,  279 ;  and 
8  N.  Y.  452 ;  Littlejohn  v.  Greeley,  13  Abb.  Pr.  R.  57 ;  Bush  v.  Prosser,  11  N.  Y.  359  ;  and 
see  post,  Damages.) 


132  WRONGFUL     ACTS.  [CL    V. 

ative  part  of  the  essential  element  of  a  wrong  that  which 
is  more  properly  a  negative  part,  not  required  to  establish 
the  fact  of  a  wrong  done,  but  required  only  when  it  is 
designed  to  show  that  what  is  a  wrongful  act,  and  prima 
facie  a  wrong,  is  not  so  in  fact  (§  63).  Let  a  wrongful 
act  stand  for  a  wrong,  unless  and  until  a  legal  excuse  be 
shown,  and  we  make  intelligible  and  consistent  what  is 
now  difficult  to  understand,  and  only  to  be  reconciled  by 
a  series  of  fictions.1 

8  89.  One  meaning  in  which  intent  or  intention  is  em- 
ployed  is  will.  When  so  employed  it  corresponds  to 
what  we  have  described  as  voluntary.  And  if  instead  of 
saying  intent  is  necessary  to  constitute  a  wrong,  we  say 
will  is  necessary  to  constitute  a  wrong,  and  then  keep  in 
view  the  distinction  between  will  (voluntary)  and  intent, 
we  at  once  remove  very  much  of  the  difficulty  which  has 
been  supposed  to  be  inherent  in  the  law  relating  to  slander 
and  libel.  It  is  conceded,  at  least  by  some,  that  in  civil 
actions  other  than  those  for  slander  and  libel,  intent,  in 
the  sense  of  intending  the  consequences  of  an  act,  is 
immaterial ;  why  should  the  civil  actions  for  slander  and 
libel  "be  excejrtions  %  Certainly  the  burden  of  proving 
them  to  be  exceptions  lies  upon  those  who  insist  that  they 
are  not  within  the  rules  which  govern  every  other  civil 
action. 

§  90.  One  meaning  of  malice  is  absence  of  legal  excuse. 
This  is  the  sense  in  which  the  term  is  most  frequently 
employed,  and  it  is,  we  conceive,  the  only  sense  in  which 
it   is   properly  employed.2     Substitute  "  absence  of  legal 

1  Mr.  Stephen,  after  referring  to  the  manner  in  which  the  word  "  malicious  " 
operates  in  shifting  the  burden  of  proof  from  the  prosecutor  to  the  prisoner,  and  stat- 
ing that  legal  fictions  are  matters  of  regret,  says:  "  It  would  be  better  to  throw  the 
law  into  a  different  shape,  and  to  enact  specifically  that  persons  who  do  acts  of  which 
the  natural  consequence  "is  to  kill,  (fee,  shall  be  punished,  instead  of  introducing  the 
question  of  intent  at  all.     (Stephen's  Crim.  Law,  304.) 

2  See  p.  122,  note  3,  ante 


§  91.]  ELEMENTS    OF    A   WKONG.  133 

excuse "  for  "  malice "  in  many  opinions  in  the  reports 
which  are  difficult  to  be  understood,  and  they  will  become 
easily  intelligible,  and  accord  with  the  principles  we 
venture  to  propound. 

To  illustrate,  that  what  is  called  malice  in  fact  really 
means  nothing  more  nor  less  than  absence  of  legal  excuse ; 
suppose  A.  has  untruly  said  B.  is  a  thief,  under  cir- 
cumstances that  A.  believing  B.  to  be  a  thief,  would 
constitute  a  legal  excuse.  A  familiar  instance  of  this  is 
the  case  of  giving,  as  it  is  termed,  the  character  of  a  former 
employe.  In  the  case  supposed,  the  material  inquiry  is : 
what  was  A's  belief?  To  answer  this  inquiry,  and  only 
for  the  purpose  of  answering  this  inquiry,  it  may  be 
material  to  ascertain  what  feeling;  or  intention  A.  had  to- 
wards  B. ;  if  the  feeling  or  intention  is  found  to  be  friendly, 
it  is  a  link  in  the  chain  of  evidence  that  A.  spoke  believing 
what  he  said.  If  the  feeling  or  intention  of  A.  towards 
B.  was  unfriendly,  it  is  a  link  in  the  chain  of  evidence 
that  A.  spoke  rather  from  that  feeling  or  intent  or  for 
some  purpose  other  than  from  his  belief ;  and  being  spoken 
not  in  a  belief  of  its  truth,  the  speaking  was  out  of  the 
pale  of  legal  excuse,  and  was  wrongful,  not  merely  or  in 
anywise  because  of  the  intent,  which  may  have  been  good 
or  bad,  but  because  the  speaking  was  not  under  cir- 
cumstances which  constitute  a  legal  excuse  ;  namely,  under 
a  belief  that  the  words  spoken  were  true.  If  in  such  a 
case  A.  was  allowed  to  testify,  and  was  to  admit  that  he 
did  not  believe  to  be  true  what  he  said  concerning  B.,  but 
that  he  spoke  without  any  intent  to  injure  or  with  a  good 
intent  towards  B.  or  any  other,  that  testimony  would  not 
constitute  any  defence ;  admitting  that  he  did  not  believe 
what  he  spoke  would  take  away  the  legal  excuse. 

§  91.  The  intent — meaning  the  intent  to  effect  certain 
consequences — with  which  an  act  is  done  is  material  on 
the  question  of  the  amount  of  damages :  the  absence  of  a 
bad  intent  will  mitigate  the  damages;  the  presence  of  a 


134  WEONGFUL    ACTS.  [Ch.  V. 

bad  intent  will  aggravate  them.  The  intent  of  the  actor  is 
sometimes  material  as  a  link  in  the  chain  of  evidence  to 
determine  whether  or  not  some  certain  act  was  or  was  not 
done  under  circumstances  constituting  a  legal  excuse,  as 
where  the  legal  excuse  is  dependent  upon  the  question : 
what  was  the  belief  of  the  actor  ?  "With  these  exceptions, 
we  conceive  that  intent  is  never  material  and  that  intent  is 
never  an  essential  element  of  a  wrong.  No  amount  of 
good  intent  will  excuse  an  act  otherwise  wrongful,  and  no 
amount  of  bad  intent  will  make  wrongful  that  which  is 
otherwise  a  permitted  act.  If  intent  is  not  an  essential 
element  of  a  wrong,  neither,  in  the  sense  of  bad  intent,  is 
malice.  If  the  term  malice  is  to  be  retained  in  use  as  a 
technical  term,  it  must  be  only  in  the  sense  of  want  of 
legal  excuse. 

§  92.  This  view  is  not,  we  are  pleased  to  say,  any 
innovation  or  novel  doctrine ;  it  is  but  a  return  to  the  old 
paths,  from  which  the  departure  has  been  very  wide. 
Holt,  after  referring  to  the  objections  urged  against  the 
law  of  libel,  says1 :  "  It  is  urged  that  the  motive  of  many 
publications  which  the  law  decrees  libels,  may  be  innocent 
and  even  laudable ;  and  that  without  the  proof  of  malice, 
or,  what  is  equivalent  to  malice,  the  mere  act  of  composing 
or  publishing  a  libel  ought  not  to  be  the  subject  of  punish- 
ment. This  objection  only  becomes  specious  from  the 
misapprehension  of  the  term  malice.  Malice,  in  legal  under- 
standing, implies  no  more  than  willfulness.2  The  first  in- 
quiry of  a  civil  judicature,  if  the  fact  do  not  speak  for 
itself  as  a  malum  in  se,  is  to  find  out  whether  it  be  will- 
fully committed ;  it  searches  not  into  the  intention  or  motive 
any  further  or  otherwise  than  as  they  are  the  marks  of  a 
voluntary  act  /  and  having  found  it  so,  it  concerns  itself 


1  Holt  on  Libel,  conclusion  of  ch.  iii.,  b'k  1,  p.  55;  and  see   comments  on   this,  2 
Mence  on  Libel,  25. 

2  See  Dexter  v.  Spear,  4  Mason,  115. 


§  92.]  ELEMENTS    OF   A   WKONG.  135 

no  more  with  a  man's  design  or  principle  of  acting,  "but 
punishes  without  scruple  what  manifestly  to  the  offender 
himself  was  a  breach  of  the  command  of  the  legislature. 
The  law  collects  the  intention  from  the  act  itself — the 
act  being  in  itself  unlawful  [wrongful],  an  evil  intent  is 
inferred,  and  needs  no  proof  by  extrinsic  evidence.  That 
mischief  which  a  man  does  he  is  supposed  to  mean,  and 
he  is  not  permitted  to  put  in  issue  a  meaning  abstracted 
from  the  fact.  '  The  crime  consists  in  publishing  a  libel ; 
a  criminal  intention  in  the  writer  is  no  part  of  the  defini- 
tion of  the  crime  of  libel  at  common  law.'  '  He  who 
scattereth  firebrands,  arrows,  and  death  (which  if  not  an 
accurate  is  a  very  intelligent  description  of  a  libel)  is 
ea  ratione  criminal.'  It  is  not  incumbent  on  the  prosecu- 
tion to  prove  his  intent,  and  on  his  part  he  shall  not  be 
heard  to  say,  '  Am  I  not  in  sport.'  To  determine,  there- 
fore, the  guilt  of  a  civil  act,  and  to  inflict  punishment  on 
the  offender,  there  is  no  need  of  knowing  his  motives. 
Human  laws  require  no  justification  in  imposing  penalties 
for  an  act  prohibited  by  the  magistrate,  in  its  consequences 
injurious,  and  which  has  indubitable  marks  of  being  vol- 
untarily committed."  This  exhibits  and  illustrates  our 
view  that  the  intent  which  the  law  regards  is  that  intent 
which  enters  into  the  question:  was  the  act  voluntary? 
and  this  it  determines  by  the  knowledge  of  the  actor,  did 
he  know  or  ought  he  to  have  known,  that  his  act 
would  produce  an  injury,  if  he  had  this  knowledge,  or 
might,  but  for  his  own  misfeasance  or  omission,  have  had 
this  knowledge,  he  is  liable  for  his  act  and  its  consequences. 
And  it  is  altogether  immaterial  whether  we  say  he  is  liable 
for  the  act  and  its  consequences,  or  say  he  is  liable  for  the 
act  because  it  was  voluntary,  and  for  the  consequences 
because  he  must  be  presumed  to  have  intended  them. 
The  latter  mode  of  statement  is  the  more  usual,  but  we 
think  less  correct,  and  may  have  contributed  to  the  confu- 
sion which  pervades  our  subject. 


CHAPTEE  VI. 


PUBLICATION PUBLISHES. 


A  Publication  is  Necessary — Meaning  of  the  term  Publi- 
cation— Ihe  Language  Published  must  be  Understood — 
The  Publication  may  be  Orally  or  in  Writing —  What 
amounts  to  an  Oral  and  what  to  a  Written  Publication — 
Publication  of  Effigy — Requisites  of  an  Oral  Publica- 
tion— Requisites  of  a  Written  Publication — Time  of 
Publication — Place  of  Publication —  WJio  is  a  Publisher 
— Republication  and  Repetition — Distinction  betioeen — 
Joint  Publication — Liability  for  Publications —  Volun- 
tary and  Lnvoluntary  Publications — Liability  of  Prin- 
cipal and  Agent — Newspaper  Publisher — Bookseller. 

§  93.  As  heretofore  observed1  (§  23),  for  language  to 
affect  another  than  its  author  the  language  must  be  pub- 


1  To  publish,  means  not  only  a  "giving  out,"  but  a  "taking  in."  In  English 
we  have  only  one  word  to  express  the  idea,  in  the  German  they  have  two  words. 
They  say  of  a  book  herausgegtbtn  that  it  is  "given  out,"  but  not  that  it  is  published 
until  sales  of  it  have  been  effected. 

"  Publication  [of  a  writing]  is  nothing  more  than  doing  the  last  act  for  the  accom- 
plishment of  the  mischief  intended  by  it."     (Rex  v.  Burdett,  4  B.  &  Aid.  126.) 

"  The  sense  in  which  the  word  published  is  used  in  law,  is  an  uttering  of  the  libel. 
Though  in  common  parlance  that  word  may  be  confined  in  its  meaning  to  making  the 
contents  known  to  the  public,  yet  the  meaning  is  not  so  limited  in  law.  The  making 
it  known  to  an  individual  only  is  indisputably,  in  law,  a  publishing.     (Id.) 

The  mode  of  publication  of  writings  in  early  times  was  by  scattering  them  in  the 
highways  or  fields — (see  Darcy  v.  Markham,  Hobart,  120.)     The  conclusion  of  "The 
Outlaw's  Song  of  Trail-le-baston,"  temp.     Edward  II,  is  as  follows: 
Escrit  estoit  en  parchemyn  pur  mout  remember 
E  gitte  en  haut  chemyn  qe  um  le  dust  trover. 
[It  was  written  on  parchment  to  be  better  remembered,  and  cast  on   the   highway 
that  people  may  find  it.]     See  Political  Songs  of  England  from  John  to  Edward  II. 
Edited  and  translated  by  Thomas  Wright,  Camden  Society,  1S39.     (Astor  Library-) 
And  see  London  Quarterly  Review,  April,  1857. 

This  method  of  publication  seems  to  have  continued  at  least  until  the  sixteenth 


§§  94,  95.]  PUBLICATION.  137 

lished ;  that  is  to  say,  it  must  be  communicated  to  some 
other  than  its  author.     There  must  be  a  publication.1 

§  94.  Publication  is  an  ambiguous  term,  employed 
to  signify  sometimes  the  matter  published,  sometimes  an 
act  of  publishing  only,  and  sometimes  an  act  of  publishing 
such  as  may  subject  the  publisher  to  legal  liability. 
Ordinarily  the  context  will  disclose  in  which  of  these 
several  senses  the  term  is  employed. 

§  95.  Every  communication  of  language  by  one  to 
another  is  a  publication.  But  to  constitute  an  actionable 
publication   that   is,  such  a  publication  as  may  confer  a 

century.  John  Fox  mentions  "  A  libel  or  book  entitled  the  Supplication  of  Beggars, 
thrown  and  scattered  at  the  procession  in  Westminster,  on  Candlemas  day  (2d  Feb- 
ruary, 1526),  before  King  Henry  the  Eighth,  for  him  to  read  and  peruse;"  and 
again,  Wolsey  immediately  went  to  his  Majesty  (Henry  Eighth)  complaining  of  divers 
seditions  persons  having  scattered  abroad  books.  The  like  mode  of  publication  was 
adopted  by  Burdet,  tried  "for  conspiring  to  kill  the  king  and  the  prince  by  casting 
their  nativities,  fortelling  the  speedy  death  of  both,  and  scattering  letters  containing 
the  prophecy  among  the  people."     9  Foss's  Judges  of  England,  and  Croke  Car.  121. 

The  meaning  and  etymology  of  the  word  Trail-lebaston  is  discussed  in  3  Foss's 
Judges  of  England,  30,  and  note  to  Political  Songs  of  England,  and  claimed  to  be 
different  from  that  given  in  the  Law  Dictionaries. 

That  the  mode  of  publication  of  libels  among  the  Romans  was  by  scattering  them 
on  the  highways  may  be  inferred  from  the  provisions  in  the  Codes  in  reference  to  the 
finding  and  finders  of  libels.  The  4th  resolution  in  Halliwood's  Case,  in  Coke's  fifth 
report,  commences,  "If  any  one  find  a  libel."     (See  2  Starkie  on  Libel,  226.) 

A  new  method  of  framing  and  dispersing  libels  was  invented,  says  Hume,  by  the 
leaders  of  popular  discontent :  petitions  to  Parliament  were  drawn  up  stating  particular 
grievances,  presented  and  immediately  printed.  And  Lord  Campbell  (VI  Lives  of 
the  Chancellors,  149)  speaks  of  "  a  dispersion  of  libels  in  Westminster  Hall,  by  means 
of  an  explosion  of  gunpowder,  while  the  judges  were  sitting  there;"  of  this  he  gives 
a  further  account,  same  volume,  p.  186. 

A  most  cowardly  and  atrocious,  yet  ingenious  method  of  defaming  is  mentioned 
by  Hazlitt  in  his  "  Essay  on  "Wills,"  and  referred  to  in  the  London  Quarterly  Review 
for  October,  1860,  as  thus:  "A  wealthy  nobleman  hit  upon  a  still  more  culpable 
device  for  securing  posthumous  ignominy.  He  gave  one  lady  of  rank  a  legacy  '  by 
way  of  compensation  for  injury  he  feared  he  had  done  her  fair  fame ; '  a  large  sum  to 
the  daughter  of  another,  a  married  woman,  '  from  a  strong  conviction  that  he  was  the 
father ; '  and  so  on  through  half  a  dozen  more  items  of  the  sort,  each  leveled  at  the 
reputation  of  some  one  from  whom  he  had  suffered  a  repulse :  the  whole  beiDg  nullified 
(without  being  erased)  by  a  codicil." 

1  There  must  be  a  publication.  (Lyle  v.  Clason,  1  Cai.  581 ;  Weir  v.  Hoss,  6 
Ala.  881.) 

10 


138  PUBLICATION.  [CL  VL 

remedy  by  civil  action,  it  is  essential  that  there  be  a 
publication  to  a  third  person,  that  is,  to  some  person  other 
than  the  author  or  publisher  and  he  whom  or  whose  affairs 
the  language  concerns.  No  possible  fomi  of  words  can 
confer  a  right  of  action  for  slander  or  libel,  unless  there 
has  been  a  publication  to  some  third  person.1  The  husband 
or  wife  of  the  author  or  publisher,  or  the  husband  or  wife 
of  him  whom  or  whose  affairs  the  lano-uao;e  concerns,  is 
regarded  as  a  third  person.2 

§  96.  There  cannot  properly  be  said  to  be  a  communi- 

1  2  Starkie  on  Libel,  13,  14,  citing  1  W.  Saund.  132,  note  2 ;  Phillips  v.  Jansen, 
2Esp.  Cas.  226;  Hick's  Case,  Hob.  215;  Rex  v.  Wegener,  2  Stark.  Cas.  245;  Force 
v.  Warren,  15  C.  B.  N.  S.  806 ;  Edwards  v.  Wooton,  12  Rep.  35.  Where  the  de- 
fendant, knowing  that  letters  addressed  to  the  plaintiff  were  opened  and  read  by  his 
clerk,  wrote  and  sent  a  letter  directed  to  the  plaintiff  which  was  opened  and  read  by 
his,  plaintiffs,  clerk,  this  was  held  to  be  a  publication.  (Delacroix  v.  Thevenot,  2 
Starkie's  Cas.  63.)  Where  a  letter,  folded  but  not  sealed,  was  delivered  to  a  third 
person  to  be  conveyed  to  the  plaintiff,  and  was  so  conveyed  without  being  read  by 
any  one,  held  there  was  no  publication.  (Clutterbuck  v.  Chaffers,  1  Starkie's  Rep. 
471 ;  Day  v.  Bream,  2  Moo.  &  Rob.  54.)  Where  a  writing  is  sent  to  the  plaintiff, 
and  he,  in  the  presence  of  a  third  person,  repeats  the  contents  of  such  writing  to  the 
writer,  who  admits  having  sent  such  a  writing,  this  is  not  a  publication  of  the  writing 
to  the  third  party.    (Fonville  v.  Nease,  Dudley  (S.  C),  303.) 

The  delivery  of  a  writing  by  the  governor  of  &  colony  to  his  attorney-general, 
not  for  an  official  purpose,  is  an  actionable  publication.  (Wyatt  v.  Gore,  Holt,  299.) 
So  is  the  delivery  of  a  writing  to  any  third  person.  (Ward  v.  Smith,  6.  Bing. 
749.)  Giving  a  writing  to  a  witness  to  copy,  the  copy  being  immediately  sent  to  a 
foreign  country,  and  the  original  retained  in  the  defendant's  possession,  is  a  publication 
upon  which  the  cause  of  action  arises  here.    (Keene  v.  Ruff,  1  Clarke  (Iowa),  482.) 

2  A  sealed  letter,  addressed  and  delivered  to  the  wife,  containing  a  libel  on  her 
husband,  is  a  publication.  (Schenck  v.  Schenck,  1  Spencer,  208  ;  Wenman  v.  Ash, 
13  Com.  B.  836) :  and  see  Mills  v.  Monday,  Lev.  112. 

Gibbons  wrote  defamatory  matter  of  Trumbull  and  had  fifty  copies  printed  in 
pamphlet  form  in  Massachusetts.  Forty-five  copies  he  retained  and  five  copies  he 
sent  to  his  wife  in  New  Jersey,  indorsing  four  of  them  with  the  names  of  certain 
persons,  acquaintances  of  the  wife,  but  without  any  instructions  to  the  wife  as  to  how 
she  should  dispose  of  the  copies  so  sent  her.  The  wife  delivered  two  of  the  copies 
in  New  Jersey  to  the  persons  whose  names  were  indorsed  thereon,  and  the  others  she 
delivered  in  New  Jersey  to  Trumbull,  who  exhibited  them  to  various  persons.  On 
Trumbull  suing  Gibbons  in  New  Tork  for  libel,  it  was  contended  for  defendant  (1) 
that  there  was  no  publication  by  defendant,  (2)  or  no  publication  within  the  State. 
The  second  point  was  overruled,  and  as  to  the  first  it  was  held  that  the  delivery  of  (he 
manuscript  to  be  printed  was  a  publication,  although  a  delivery  to  a  wife  in  confidence 
would  not  be  a  publication,  yet  in  the  case  then  before  the  court  the  wife  acted  as  the 
agent  of  her  husband,  and  her  delivery  of  the  pamphlets  amounted  to  a  publication 
by  the  defendant.     (Trumbull  v.  Gibbons,  3  City  Hall  Recorder,  97.) 


§  97.]  PUBLICATION.  139 

cation  of  language  by  one  to  another  unless  that  other 
understands  the  signification  or  meaning  of  the  language 
sought  to  be  communicated.1  "When  we  say  the  language 
must  be  understood  by  the  one  to  whom  it  is  published, 
we  mean  only  that  the  matter  published  must  be  in  a 
language  which  the  person  to  whom  it  is  published  can 
interpret  to  some  meaning.  To  one  who  does  not  under- 
stand the  language  in  which  a  publication  is  made,  it  is  as 
to  him  nothing  more  than  unmeaning  sounds  or  signs  and 
not  language  (§  l).2 

§  97.  The  publication  of  language  may,  in  reference 
to  the  place  at  which  the  publication  is  made,  be  either  in 
the  vernacular  or  in  a  foreign  language.  "Where  the  lan- 
guage published  is  the  vernacular  of  the  place  of  publica- 
tion, it  requires  no  proof  that  those  who  heard  or  read  it 
understood  it ;  but  it  may  be  shown  that  those  who  heard 
or  read  such  language  did  not  in  fact  understand  its 
significations.  Where  the  language  published  is  one 
foreign  to  the  place  of  publication  it  will  not  be  assumed 
that  those  who  heard  or  read  understood  it,  but  it  may  be 
shown  that  such  hearers  or  readers  did,  in  fact,  understand 
what  they  heard  or  read.3  Where  the  matter  published 
is  in  a  language  which  he  who  hears  or  reads  it  understands, 
it  will  be  assumed  he  understood  it  in  the  sense  which 
properly  belongs  to  it.  In  all  cases  of  doubt,  the  question 
whether  or  not  the  third  person  to  whom  the  publication 

1  Keene  v.  Ruff,  1  Clarke  (Iowa),  482. 

a  "Scandalous  words,  if  they  be  spoken  in  an  unknown  tongue  which  none  of 
the  auditors  understand,  will  not  bear  an  action  because  they  do  no  injury." 
(Danvers  Abr.  146,  pi.  1,2.)  "Where  slander  is  published  in  a  foreign  language 
it  is  necessary  to  show  that  the  hearers  understood  the  language "  (2  Starkie  on 
Slander,  52 ;  Fleetwood  v.  Curley,  Hob.  267 ;  Viner's  Abr.  tit.  Actions  for  Words, 
A.  b. ;  2  Stark.  Ev.  844;  Holt  on  Libel,  245),  for  the  slander  and  damage  consist  in  the 
apprehension  of  the  hearers.     (Cro.  Eliz.  496,  pi.  16.) 

3  Amann  v.  Damra,  8  Com.  B.  N.  S.  597.  But  in  Ohio  it  is  held  that  where  words 
are  spoken  in  German  in  a  German  county,  it  will  be  presumed  they  were  understood, 
and  no  averment  that  they  were  understood  is  necessary.  (Bechtell  v.  Shaler,  Wright, 
107.)     And  as  to  Welsh  words  see  what  is  said  1  W.  Saund.  242,  n.  1. 


140  PUBLICATION.  [Ch.  VI. 

was  made  understood  the  language  employed,  is  a  question 
of  fact.  How  such  third  person  understood  the  language, 
that  is  to  say,  the  sense  in  which  he  understood  it,  is 
ordinarily  a  question  of  interpretation.  In  our  courts  a 
witness  cannot  be  asked  how  he  understood  the  language, 
or  what  he  understood  by  the  language.1     [§  384.] 

§  98.  The  publication  of  language  may  be  orally  or  in 
writing.  The  distinction  between  these  two  modes  of 
publication  is  material  to  be  observed,  as  it  marks  the 
boundary  line  between  slander  and  libel.  That  alone  is  a 
libel  which  "  has  an  existence  per  se  off  the  tongue." 2 

§  99.  Where  the  language  has  not  been  reduced  to 
writing,  its  communication  from  one  to  another  must  be  an 
oral  publication.  Where  the  language  has  been  reduced 
to  writing,  its  communication  from  one  to  another  may, 
according  to  the  circunistances  of  the  communication, 
amount  to  either  an  oral  publication  or  a  publication  in 
writing. 

§  100.  As  respect  oral  language,  speech,  we  must  dis- 
tinguish between  the  sound  itself  and  the  signification 
of  the  sound.  As  respects  language  in  writing,  we  must 
distinguish  between  the  writing,  i.  e.,  the  paper,  or  other 
substance  written  upon ;  the  writing,  i.  e.,  the  characters 
inscribed  upon  the  paper,  or  other  substance  written  upon  ; 
and  the  signification  of  those  inscribed  characters,  the 
subject-matter  of  the  writing. 

1  Smart  v.  Blanchard,  42  N.  H.  137;  Wright  v.  Paige,  36  Barb.  438 ;  Gibson  v. 
"Williams,  4  Wend.  320 ;  Van  Vechten  v.  Hopkins,  5  Johns.  211.  A  witness  who  has 
heard  a  conversation  cannot  be  asked  "  What  did  you  understand  by  that,"  without 
previously  laying  a  foundation  for  such  a  question  by  showing  that  something  bad 
previously  occurred  in  consequence  of  which  the  words  would  convey  a  meaning 
different  to  their  ordinary  meaning ;  having  done  so,  the  witness  may  then  be  asked 
"What  did  you  understand/'  (fee.  (Daines  v.  Hartley,  3  Ex.  200;  11  Law  Times, 
271:  see  2  Starkie  on  Libel,  52;  Fleetwood  v.  Curl ey,  Hob.  267.)  See  post  Con- 
struction. 

2  Holt  on  Libel,  254. 


§§  101,    102.]  PUBLICATION.  141 

§  101.  The  possession  of  a  writing,  the  material  written 
upon,  may  be  parted  with,  and  the  writing  itself,  the 
material  written  upon,  may  be  passed  from  hand  to  hand 
without  any  communication  of  either  the  characters 
inscribed  upon  such  material  written  upon,  or  of  the 
signification  of  such  characters.  As,  for  example,  the 
delivery  of  a  sealed  letter  to  another.  Such  a  parting 
with  the  writing  does  not  of  itself,  and  without  more, 
amount  to  a  publication  of  any  kind.  Thus  where  a  folded 
letter  was  delivered  to  a  third  person  to  deliver  to  him 
whom  the  subject-matter  of  the  letter  concerned,  and  the 
third  person  delivered  the  letter  as  addressed,  without 
reading  its  contents,  it  was  held  that  there  was  not  any 
publication  to  such  third  person.1  But  if  the  messenger 
had  opened  and  read  the  letter  entrusted  to  him  to  carry, 
that  would  be  a  publication,  and  it  would  be  no  defence 
to  say  the  sender  did  not  intend  that  the  messenger  should 
read  the  letter.2 

§  102.  The  characters  inscribed  upon  a  paper  may  be 
communicated  by  one  to  another  without  any  parting 
with  the  possession  of  the  writing,  the  material  written 
upon,  itself ;  as  by  an  exposure  of  the  writing,  the  material 
written  upon,  in  such  a  manner  as  that  the  characters 
inscribed  upon  it  may  be  seen  and  read  by  another. 


1  Clutterbuck  v.  Chaffers.  1  Starkie's  Rep.  471. 

Throwing  a  sealed  letter,  addressed  to  the  plaintiff  or  at  hird  person,  into  the  en- 
closure of  another,  who  delivers  it  unopened  to  the  plaintiff  himself,  is  not  a  publica- 
tion.    (Fonville  v.  Nease,  Dudley,  S.  C.  303.) 

Sending  to  the  person  whom  the  writing  concerns,  a  letter  sealed  up  is  no  publiea  - 
tion ;  and  a  letter  is  always  to  be  understood  as  being  sealed  up,  unless  otherwise 
expressed.  (Lyle  v.  Clason,  1  Cai.  5S1 ;  Phillips  v.  Jausen,  2  Esp.  625.)  See  1  W. 
Saund.  132,  note  2. 

Nor  would  it  amount  to  a  publication,  though  the  plaintiff  afterwards  repeated 
the  contents  of  it  publicly,  and  the  defendant  avowed  himself  the  author  of  it. 
(Fonville  v.  Nease,  Dudley,  S.  C.  303.) 

2  Fox  v.  Broderick,  14  Irish  Law  Rep.  453. 


142  PUBLICATION.  [CL  VL 

§  103.  The  subject-matter  of  a  writing,  the  signification 
of  the  characters  inscribed  upon  a  paper,  may  be  com- 
municated orally  by  one  to  another ;  and  if  this  be  done 
without  any  parting  with  the  possession  of  the  writing 
itself,  and  without  any  exposure  of  such  writing  to  any 
other  person ;  as  where  one  reads  the  contents  of  a  writing 
to  another  without  parting  with  the  writing  itself,  and 
without  permitting  the  other  to  read  the  contents  of  such 
writing.  This  we  mi/gpose  would  amount  only  to  an  oral 
publication.1 

§  104.  Parting  with  the  possession  of  a  writing,  the 
material  written  upon,  in  such  a  condition  and  under  such 
circumstances  as  that  the  characters  inscribed  upon  it  may 
be  and  are  seen  and  read  and  understood  by  another,  is  a 
publication  in  writing.  It  amounts  to  a  publication  if  or 
provided  the  subject-matter  be  read  and  understood.2 

§  105.  An  exposure  by  one  person  to  another  of  a 
writing,  the  material  written  upon,  without  parting  with 

1  The  writer's  reading  to  a  stranger  his  letter  to  the  plaintiff,  before  dispatching 
it,  is  a  publication.  (Snyder  v.  Andrews,  6  Barb.  43 ;  McCombs  v.  Tuttle,  5  Blackf. 
431 ;  Van  Cleef  v.  Lawrence,  2  City  Hall  Recorder,  41.)  Query,  the  kind  of  publica- 
tion. 

2  Posting  a  writing  in  a  public  place,  and  taking  it  down  before  any  one  had  read 
it,  would  not  be  a  publication.     (2  Starkie  on  Libel,  16,  note  n.) 

A  publication  by  delivery  of  letters  containing  the  defamatory  matter,  or  by 
posting  the  writing  on  a  church  door,  are  termed  constructive  publications  in  Baldwin 
v.  Elphinstone,  2  W.  Black.  Rep.  1037,  referring  to  Rastell's  Entries  tit.  Action  sur  le 
case,  13. 

By  section  17  of  statute  38  Geo.  Ill,  ch.  lxxviii,  the  printer  or  publisher  of 
every  newspaper  or  other  such  paper  is  required  to  deliver  a  copy  of  the  paper  at  the 
stamp  office,  it  was  held  that  such  delivery  was  a  publication.  (Rex  v.  Amphlitt,  4  B. 
<fc  Cr.  35.) 

If  A.  sends  a  manuscript  to  the  printer  of  a  periodical  publication,  and  does  not 
restrain  the  printing  and  publishing  of  it,  and  he  prints  and  publishes  it  in  that 
publication,  A.  is  the  publisher,  and  liable  to  an  action.  (Burdett  v.  Cobbett,  5  Dowl. 
301.     See  Bond  v.  Douglas,  7  Car.  &  P.  626.) 

Printing,  *  *  unless  qualified  by  circumstances,  is  prima  facie  a  publishing, 
the  manuscript  must  be  delivered  to  the  compositors.  (Baldwin  v.  Elphinstone,  2  W. 
Black.  Rep.  1037 ;  Holt  on  Libel,  293 ;  Trumbull  v.  Gibbons,  3  City  Hall  Recorder, 
97.) 


§§  106,  107.]  PUBLICATION.  143 

the  possession  of  such  writing,  but  permitting  the  writing, 
the  characters  inscribed,  to  be  read  by  the  other,  is  a 
publication  in  writing. 

§  106.  Effigy  resembles  a  writing,  the  material  written 
upon,  as  distinguished  from  the  subject-matter  of  a  writing. 
An  exposure  of  an  effigy  or  a  parting  with  the  possession 
of  it  in  such  a  condition  that  it  may  be  seen  by  another  is 
a  publication.1 

§  107.  The  requisites  of  cm  oral  publication  are :  (1) 
that  the  language  be  spoken  to  or  in  the  presence  of  at 
least  some  one  third  person  (§  95).  No  possible  form  of 
words  can  be  the  basis  of  an  action  for  slander  if  at  the 
time  of  their  utterance  the  only  persons  present  are  the 
speaker  and  the  person  whom  or  whose  affairs  the  language 
concerns.2  (2)  The  third  person  present  must  hear  the 
language  spoken.3  Whether  the  third  person  present  at 
the  speaking  did  or  did  not  hear  the  language  spoken  is, 
in  every  case,  a  question  of  fact.  And  this  is  not  the  less 
the  rule,  because  where  the  speaking  is  in  the  presence  of 
a  third  person,  under  such  circumstances  that  he  might 
have  heard  what  was  spoken,  he  may,  as  a  rule  of  evidence, 
be  assumed  to  have  heard  it,  until  it  be  shown  that  he 
did  not  hear.4     The  burden  is  on  him  who  alleges  a  publi- 

J  The  civil  law  made  a  distinction  not  only  between  oral  and  written  defamation 
but  between  a  publication  by  writing  and  by  pictures.     (Heineccius,  lib.  47,  tit.  10.) 

2  Uttering  slanderous  words  in  the  presence  of  the  person  slandered  only  is  not 
actionable.  (Sheffill  v.  Van  Deusen,  13  Gray,  304;  Brodrick  v.  James,  3  Albany 
Law  J.  232,  and  see  note  to  §  95,  ante.) 

3  "  If  none  heard  the  words  it  is  no  slander."  (Viner's  Abr.  tit.  Actions  for  Words 
L.  b.  4  ;  and  see  cases  cited,  1  Caine's  R.  582.) 

4  The  word  "  publish,"  as  applied  to  speech,  implies  that  the  language  was 
spoken  in  the  presence  and  hearing  of  others.  (Watts  v.  Greenlee,  2  Dev.  115; 
Viner's  Abr.  tit.  Actions  for  Words,  L.  b.  4  ;  contra,  Burton  v.  Burton,  3  Iowa,  316. 
See  Goodrich  v.  Warner,  21  Conn.  432 ;  1  Ililliard  on  Torts,  319,  note.)  In  slander  it 
is  sufficient  if  the  words  are  said  to  have  been  spoken  "in  the  presence"  of  others, 
(Brown  v.  Brashier,  2  Penns.  114.)  Or  in  the  presence  and  hearing  of  divers  persons, 
or  of  certain  persons  named.  (Burbank  v.  Horn,  39  Maine,  233,  and  see  1  W. 
Saund.  242,  n.  1.)    See  §  324,  post. 


144  PUBLICATION.  [CL  VI. 

cation  to  establish  that  the  third  person  heard  the  language 
spoken.  (3)  The  third  person  must  understand  the  lan- 
guage (§  96).  "When  hereafter  we  speak  of  an  oral  publi- 
cation, or  a  publication  orally,  we  shall  intend  a  publication 
with  the  requisites  above  mentioned. 

§  108.  The  requisites  of  a  pubUcaitwn  in  writing  are 
(1)  that  the  writing,  the  material  written  upon,  be  so 
exposed  as  that  the  subject-matter  of  the  writing  is  read 
by  at  least  some  one  third  person  (§  101).  No  possible 
form  of  language  in  writing  can  be  the  basis  of  an  action 
for  libel  if  read  only  by  the  writer  and  the  person  whom 
or  whose  aifairs  the  language  concerns.1  (2)  The  subject- 
matter  of  the  writing  must  be  understood  by  at  least  some 
one  third  person  by  whom  it  is  read  (§  96).  When  here- 
after we  speak  of  a  publication  in  writing,  we  shall  intend 
a  publication  with  the  requisites  above  mentioned. 

§  109.  The  publication  must  be  prior  to  the  com- 
mencement of  the  action,  and  a  publication  prior  to  the 
commencenent  of  the  action,  should  be  proved.2 
Where  a  witness  called  to  prove  publication  was  unable 
to  say  whether  the  speaking  the  words  referred  to  was 
before  or  after  the  date  when  the  action  was  commenced, 
it  was  decided  that  his  testimony  was  not  admissible.3 
But  it  was  held  not  to  be  a  ground  for  arresting  the  judg- 
ment that  it  appeared  on  the  face  of  the  record  that  the 
writ  issued  prior  to  the  alleged  publication.4 

§  110.  The   place  of  publication  may   be   within   or 

1  But  delivery  to  the  party  libelled  is  a  sufficient  publication  to  support  an 
indictment.  (Phillips  v.  Jansen,  2  Esp.  624.)  The  moment  a  man  delivers  a  libel  from 
his  hand  and  ceases  to  have  control  over  it,  there  is  an  end  of  his  locus  penitent  ice  the 
injuria  is  complete.     (Holroyd  J.  Rex  v.  Burdett,  4  B.  <fc  Aid.  143.) 

2  Taylor  v.  Sturgingger,  2  Rep.  Con.  Ct.  367  ;  Phila.  <fcc,  R.  R.  v.  Quigley,  21  How. 
202. 

3  Steward  v.  Layton,  3  Dowl.  Pr.  Cas.  430. 
*  Scovel  v.  Kingsley,  1  Conn.  R.  284. 


§  110.]  PUBLICATION.  145 

without  the  territorial  limits  of  the  State  or  country  with- 
in which  redress  is  sought.  The  decisions,  so  far  as  they 
go,  all  hold,  that  as  a  question  of  jurisdiction,  it  is  im- 
material whether  the  publication  was  within  or  without 
the  territorial  limits  of  the  State  or  country  within  which 
redress  is  sought,  and  this  on  the  ground  that  the  wrong 
follows  the  person  and  may  be  redressed  by  civil  action  in 
any  court  having  jurisdiction  of  the  person  at  the  time 
redress  is  sought.  It  is  conceded,  however,  that  as  regards 
crimes  no  redress  can  be  had  in  one  State  for  a  crime 
enacted  within  the  territorial  limits  of  another  State, 
because  a  crime  is  a  violation  of  the  law  of  the  State 
within  which  it  is  enacted.  This  concession  seems  to  imply 
that  for  a  wron^  committed  in  one  State  there  can  be  no 
remedy  in  another ;  because  the  right  to  remedy  is  based 
on  a  violation  of  some  general  prohibition  of  the  law,  and 
not  like  a  remedy  on  contract  for  a  breach  of  a  private 
convention  between  the  parties,  which  of  course  follows 
the  persons  of  the  parties  to  the  convention.1     The  effect 

1  Mr.  Stephens,  in  his  "  Treatise  on  Criminal  Law,"  insists  that  a  crime  and  a 
tort  differ  only  as  regards  their  consequences. 

Kb  court  "  administers  justice  in  general"  (De  Bode  v.  Reg.,  13  Ad.  &  EL,  N.  S. 
386),  and  "  the  laws  of  a  State  have  no  force  propria  vigore  beyond  its  territorial 
limits."  (Hoyt  v.  Thompson,  5  N.  Y.  340.)  "If  two  persons  fight  in  France,  and  both 
happening  casually  to  be  here  [in  England],  one  should  bring  an  action  of  assault 
against  the  other,  it  might  be  doubtful  whether  such  an  action  could  be  maintained 
here  [in  England].  *  *  *  It  might  perhaps  be  triable  only  where  both 
parties  at  the  time  were  subjects."  (Mostyn  v.  Fabrigas,  20  State  Tr.  82  ;  1  Smith's 
Leading  Cases.)  In  Molony  v.  Dows  (8  Abb.  Pr.  E.  316)  it  was  held  at  nisi prius, 
but  after  elaborate  argument  and  deliberation,  that  an  action  for  an  assault  in  Califor- 
nia could  not  be  maintained  in  the  courts  of  the  State  of  New  York.  In  Mclvor  v. 
McCabe  (16  Abb.  Pr.  R.  319),  it  was  held  that  the  courts  of  New  York  had  jurisdic- 
tion of  an  action  for  a  personal  injury  committed  in  New  Jersey  by  one  citizen  of 
that  State  upon  another.  As  to  action  'for  tort  committed  in  a  foreign  country,  see 
Scott  v.  Seymour,  6  Law  Times  Rep.  N.  S.  607;  1  Hurl.  &  Colt.  219 ;  32  Law  Jour. 
61  Ex. ;  DeWitt  v.  Buchanan,  54  Barb.  31.  "  As  a  general  rule,  in  order  to  found  a 
suit  in  England  for  a  wrong  alleged  to  have  been  committed  abroad,  two  conditions 
must  have  been  fulfilled.  First,  the  wrong  must  be  of  such  a  character  that  it  would 
have  been  actionable  of  committed  in  England  *  *  *  Secondly,  the 
act  must  not  have  been  justifiable  by  the  law  of  the  place  where  it  was  done," 
(Phillips  v.  Eyre,  Law  Rep.  VI.  Q.  B.  29;  and  see  s.  c.  Law  Rep.  IV.  Q,  B.  225; 
Barry  v.  Fisher,  39  How.  Pr.  R.  521.) 


146  PUBLISHER.  [CLVL 

of  the  place  of  publication  upon  the  construction  of  the 
language  published,  and  as  a  question  of  venue,  and  as 
affecting  the  liability,  will  hereafter  be  considered. 

§111.  The  person  who  makes  a  publication  is  a  pub- 
lisher. In  the  text  books,  and  in  reference  to  slander  and 
libel,  the  term  publisher  is  employed  sometimes  to  signify 

"  Of  matters  arising  in  a  foreign  country,  pure  and  unmixed  with  matters  arising 
in  this  country,  we  have  no  proper  original  jurisdiction,  but  of  such  matters  as  are 
merely  transitory  and  follow  the  person,  we  acquire  a  jurisdiction  by  the  help  of  that 
fiction  to  which  I  have  already  alluded  [the  fiction  of  laying  the  venue],  and  we 
cannot  proceed  without  it."  (Eyre,  C.  J.  Uderton  v.  Hderton,  2  H.  BL  145,  169 
to  torts  committed  at  sea.  (Percival  ).•.  Hickey,  18  Johns.  257:  Xovion  v.  Hullett,  16 
id.  327  ;  "Wilson  v.  McKenzie,  7  Hill,  95.) 

To  maintain  an  indictment  for  libel,  the  publication  must  be  proved  to  have  been 
made  in  the  county  laid  in  the  indictment,  all  matters  of  crime  being  locaL  (Holt 
on  Libel,  299  ;  citing  Rex  v.  Johnson,  7  East,  65.)  In  Trumbull  v.  Gibbons,  3  City 
Hall  Recorder,  97,  the  libel  was  printed  in  Boston  and  published  in  New  Jersey,  but 
held  the  courts  of  New  York  had  jurisdiction;  and  see  Glen  v.  Hodges,  9  Johns. 
67:  Smith  v.  Bull,  17  Wend.  323;  Johnson  v.  Dalt on,  1  Cowen,  54 S;  Gardner  r. 
Thomas,  14  Johns.  134. 

If  one  of  our  citizens  goes  into  Canada  and  slanders  his  neighbor,  an  action  will 
lie  in  this  State.  (Lister  v.  Wright,  2  Hill,  320 ;  Hall  v.  Yreeland,  42  Barb.  543 ; 
18  Abb.  Pr.  R  182 

An  action  for  slander  will  lie,  in  Indiana,  for  words  spoken  in  another  State 
actionable  at  common  law.  (Offutt  v.  Earlywine,  4  Blackf.  460;  Linville  v.  Early- 
wine,  4  Blackf.  469  ;  Stout  v.  "Wood,  1  id.  71.)  And  the  same  in  Vermont  (Langdon 
..  Young,  33  Yerm.  (4  Shaw,)  136.) 

In  an  action  of  slander  brought  in  Indiana,  it  will  be  presumed  until  the  con- 
trary be  proved  that  the  words  were  spoken  in  that  State.  (Worth  v.  Butler,  7 
Blackf.  251.) 

It  is  sometimes  necessary  to  show  a  publication  in  a  particular  county.  "Where 
the  defendant  wrote  letters  in  Ireland,  and  sent  them  to  Middlesex  county,  England, 
to  be  printed  and  published,  and  the  letters  were  there  published,  it  was  held  to  be  a 
publication  by  the  defendant  in  Middlesex  county.  (Rex  p.  Johnson,  7  East,  65  :  and 
to  the  like  effect  Rex  v.  Middleton,  Str.  77 ;  KeeDe  v.  Ruff,  1  Clarke  (Iowa 
"Where  A.  wrote  a  letter  and  sent  it  by  mail  to  B.,  in  the  county  of  B.,  and  it  was 
again  sent  by  mail  to  the  county  of  M.,  at  which  county  B.  received  and  read  it, 
held  to  be  a  publication  in  the  county  of  M.  (Rex  v.  "Watson,  1  Camp.  215  ;  and  see 
Rex  v.  Girdwood,  East's  PC.  1116,  1120;  "Case  of  the  Seven  Bishops,  4  State  Trials 
304  ;  Rex  v.  Burdett,  4  B.  <t  A.  717  :  2  Starkie  on  Slander,  39-43 ;  Commonwealth 
v.  Blanding,  3  Pick.  304.) 

In  an  action  for  suspending  a  lamp  before  the  plaintiffs  house,  intimating  that  it 
was  a  house  of  ill-fame,  the  parish  in  which  the  declaration  states  the  house  to  have 
stood  and  the  tort  to  have  been  committed,  is  to  be  considered  as  venue  merely,  and 
not  as  local  description,  and  it  is  immaterial  whether  there  be  any  such  parish  in 
existence.  (Jefferies  v.  Duncombe,  2  Camp.  3:  11  East,  226.)  And  see  Mersey 
Navigation  Company  v.  Douglas,  2  East.  497. 


§§  112-114.]  PUBLISHER.  147 

the  person  who  actually  makes  a  publication,  and  sometimes 
the  person  who,  not  being  the  actual  publisher,  is  liable 
for  the  publication;  is  liable  as  publisher.  We  shall 
always  employ  the  tenn  publisher  in  the  sense  of  and  to 
signify  the  person  who  actually  makes  the  publication. 

§  112.  Republication  is  a  second  or  subsequent  publi- 
cation of  the  same  language.  Repetition  is  a  publication 
of  language  of  the  same  import  or  meaning,  as  the  language 
of  a  previous  publication.  Repetition  is  a  subsequent 
publication  independent  and  distinct  from  the  first  publi- 
cation. There  may  be  a  republication  of  a  writing,  the 
material  written  upon,  there  may  be  a  repetition  of  the 
subject-matter  of  a  writing,  and  there  may  be  a  repetition 
of  oral  language  (speech),  but  there  cannot  be  a  republi- 
cation of  oral  lano'uao-e. 

§  113.  Speech  is  but  sound,  a  mere  vibration  of  the 
atmosphere,  cognizable  only  by  the  auditory  sense.  From 
its  nature  it  necessarily  follows  that  the  same  sound  cannot 
be  repeated;  a  similar  or  a  like  sound  may  be  produced, 
undistinguishable  in  every  respect  from  the  first,  and  of 
the  like  character  and  signification,  but  that  will  not  be 
the  same  sound.  One  who  repeats  a  word  previously 
spoken  does  not  utter  the  identical  word,  but  a  similar  or 
like  word:  he  repeats  a  like  sound  of  the  sa//ie  significa- 
tion as  the  first.  The  two  sounds  are  separate  and  distinct, 
although  each  has  the  same  meaning.  Hence  each  publi- 
cation of  oral  language  is  a  new,  distinct,  and  separate 
publication. 

§  114.  As  respects  oral  publications,  the  person  who 
actually  makes  the  publication,  the  publisher,  and  the 
person  liable  as  the  publisher,  must  be  always  one  and 
the  same  person.  Every  speaker  is  the  publisher  of  what 
he  speaks,  and  is  solely  liable  therefor.  That  the  words 
spoken  have  been  previously  published  by  another,  can 
neither  relieve  the  subsequent  speaker  from  his  liability 


148  PUBLISHER  [Ch.  VI 

for  the  publication  made  by  him,  nor  impose  any  liability 
on  the  previous  publisher.  The  act  of  publication  is  as 
to  each  publisher  an  entirely  distinct  act.  Each  person 
can  be  liable  only  for  the  publication  made  by  him.  If 
one  makes  an  oral  publication,  and  another  repeats  it, 
without  authority  from  the  first  speaker,  the  first  publisher 
is  not  liable  for  the  rejDetition.1  Besides  that,  the  repetition 
is  not  a  repetition  of  the  same  language  (§  113).  The 
repetition  is  neither  a  necessary  nor  a  natural  and  proxi- 
mate consequence  of  the  first  publication.  It  is  not  an 
exception,  but  a  corrollary  of  this  rule,  that  where  the 
repetition  is  privileged,  the  author  of  the  defamation  is 
liable  for  the  consequences  of  such  privileged  repetition. 
The  repetition  is  a  natural  consequence  of  the  first  publi- 
cation. Thus,  where  the  defendant  made  a  defamatory 
communication  to  A.  respecting  the  plaintiff,  in  the  em- 
ploy of  his  A.'s  wife,  which  A.  repeated  to  his  wife,  who 
in  consequence  dismissed  the  plaintiff  from  her  service, 
held  that  the  defendant  was  liable  for  the  damages  occa- 
sioned by  the  dismissal.2 

f  §  115.  As  respects  a  publication  by  writing,  a  libel 
not  only  the  publisher  "but  all  who  in  anywise  aid  or  are 
concerned  in  the  production  of  the  writing  are  liable  as 
publishers ;  the  publication  of  the  writing  is  the  act  of  all 
concerned  in  the  production  of  the  writing  (§  113).  Thus, 
if  one  composes  and  dictates,  a  second  writes,  and  a  third 
publishes,  all  are  liable  as  publishers,  and  each  is  liable  as 
a  publisher.3  j 

1  Where  A.  uttered  a  slander  of  B.  the  wife  of  C,  and  B.  repeated  the  slander  to 
C,  in  consequence  of  which  C.  refused  to  cohabit  with  B.,  held  that  no  action  could 
be  maintained  against  A.;  the  publication  was  not  A.'s,  and  A.  was  not  responsible 
for  the  consequences  of  it.  (Parkins  v.  Scott,  6  L.  T.  N.  S.  394 ;  s.  c.  Perkins  v.  Scott, 
1  Hurl.  &  Colt.  153.)  But  the  person  who  originates  the  slander  can  only  be  liable 
'or  the  special  damage  occasioned  by  his  own  communication  of  it.  (Cates  v.  Kel- 
logg, 9  Ind.  506;  Dixon  v.  Smith,  5  Hurl.  &  Nor.  450;  Fowles  v.  Bowen,  30  N.  T. 
20;  Ward  v.  "Weeks,  7  Bing.  211 ;  Cochran  v.  Butterfield,  18  N.  Hamp.  115.) 

2  Derry  v.  Handley,  16  Law  Times  N.  S.  263  ;  and  see  post,  §  202. 

3  All  concerned  in  making  a  libel  are  alike  liable.     "  The  law  denominates  them 


§  116.]  PUBLISHER.  149 

§  116.  The  mere  composing  or  writing  any  certain 
form  of  words,  and  keeping  the  writing  and  its  contents 
confined  to  the  custody  and  to  the  knowledge  of  the 
composer  or  writer,  so  that  it  is  not  communicated  to  any 
other  person,  does  not  render  the  composer  or  writer  lia- 
ble either  to  indictment  or  to  civil  action,  for  there  is  no 
publication.  So,  having  or  retaining  possession  of  a  wri- 
ting, no  matter  by  whom  written,  cannot  amount  to  a 
wrong  by  the  person  so  having  or  retaining  possession  of 
such  writing ;  for  as  to  him,  at  least,  there  is  no  publica- 

all  makers."  (Holt  on  Libel,  2S8,  289 ;  2  Starkie  on  Slander,  225 ;  Bishop's  Crini. 
Law,  §  931  [814],  citing  Rex  v.  Drake,  Holt,  425;  Rex  v.  Paine,  5  Mod.  163;  Rex  v. 
Bear,  Carth.  407 ;  Rex  v.  Williams,  2  Camp.  646.)  "All  persons  who  concur  and 
show  their  assent  or  approbation  to  do  an  unlawful  act,  are  guilty ;  so  that  murder- 
ing a  man's  reputation  by  a  scandalous  libel  may  be  compared  to  murdering  his  per- 
son ;  and  if  several  are  assenting  and  encouraging  a  man  in  that  act,  though  the 
stroke  was  given  by  one,  yet  all  are  guilty  of  homicide."  (Quoted  by  Kent,  Ch.  J., 
in  Dale  v.  Lyon,  10  Johns.  461 ;  Cochran  v.  Butterfield,  18  N.  Hamp.  115.) 

The  publisher  is  equally  responsible  with  the  author  of  a  libel.  (Dexter  v.  Spear, 
4  Mason,  115.)  Printer  and  editor  are  both  liable.  (Watts  v.  Fraser,  7  Car.  &  P. 
369 ;  Rex  v.  Dover,  16  Charles  II,  2  St.  Tr.  547,  Hargreaves  Ed.)  The  proprietor 
of  a  newspaper  is  liable  for  defamatory  matter,  published  in  the  form  of  an  adver- 
tisement in  his  paper,  although  others  are  also  liable  for  the  same  publication.  (Har- 
rison v.  Pierce,  1  Fos.  &  Fin.  567),  and  the  author  of  a  libel  may  be  sued  for  its  pub- 
lication, notwithstanding  that  the  publisher  of  the  libel  has  been  sued  in  respect  of 
it.  (Frescoe  v.  May,  2  F.  &  F.  123.)  The  responsibility  of  the  writer  of  a  private 
letter  for  the  publication  of  its  contents,  is  not  limited  to  the  consequences  of  a  com- 
munication of  them  to  the  person  to  whom  the  letter  is  addressed,  but  extends  to  the 
probable  consequences  of  thus  putting  the  letter  in  circulation,  (Miller  v.  Butler,  6 
Cush.  71.) 

Where,  in  case  for  oral  and  written  slander,  to  support  the  count  on  the  latter,  a 
reporter  to  a  newspaper  was  called,  who  proved  that  he  had  written  down  from  the  de- 
fendant's mouth  (who  said  at  the  time  it  would  make  a  good  case  for  the  newspapers)  the 
statement  which  he  afterwards  sent  to  the  editor,  and  that  a  paragraph,  -which  after- 
wards appeared,  was  in  substance  the  same,  held,  that  what  was  so  published  in  con- 
sequence of  what  passed  with  the  defendant  might  be  considered  as  published  by  the 
defendant ;  but  to  prove  that  what  was  published  was  the  same  as  that  given  to  the 
editor  by  the  reporter,  could  only  be  done  by  producing  the  written  paper  itself. 
(Adams  v.  Kelly,  1  Ry.  &  M.  158.) 

Two  persons  having  participated  in  the  composition  of  a  libelous  letter  written 
by  one  of  them,  which  was  afterwards  put  into  the  post-office,  and  sent  by  mail  to 
the  person  to  whom  it  was  addressed ;  such  participation  was  held  to  be  competent 
and  sufficient  evidence  to  prove  a  publication  by  both.  (Miller  v.  Butler,  6  Cush. 
71.)  And  see  Reg.  v.  Cooper,  15  Law  Jour.  Rep.  Q.  B.  206;  8  Q.  B.  533;  Parkes  v. 
Prescott,  Law  Eep.  IV  Ex.  168. 


150  PUBLISHER.  [Ch.  VI. 

tion.1  The  composer  and  the  writer  of  matter  which  is 
afterwards  published  is  liable  as  publisher  for  such  publi- 
cation.2 And  this  liability,  as  ice  suppose,  is  not  to  be 
qualified  by  the  circumstances  under  which  the  publica- 
tion occurred.  It  would  be  no  excuse  to  say  that  the 
writing  was  kept  guarded  and  concealed,  and  was  taken 
from  him  by  force,  or  obtained  from  him  by  fraud  or  by 
the  procurement  of  the  party  whom  or  whose  affairs  it 
concerns.3  If  the  matter  written  is  of  an  injurious  ten- 
dency, and  any  injury  ensues  from  its  publication,  the  com- 
poser and  the  writer  are  liable,  not  because  of  any  im- 
puted or  presumed  malice  in  making  the  publication,  but 
because,  unless  such  a  writing  had  been  created,  the  in- 
jury occasioned  by  it  could  not  have  happened ;  creating 
the  writing  and  preserving  it  were  wrongful  acts,  for  the 
necessary  or  natural  and  proximate  consequences  of  which 
the  authors  are  liable  on  the  general  principle  that  a  wrong 
doer  cannot  excuse  his  act,  by  reason  of  the  act  whether 
rightful  or  wrongful  of  others.4 

§  117.  The  material  written  upon,  and  the  subject- 
matter  inscribed  upon  such  material,  are  substantial 
entities.     The  veiy  identical  writing  may  be  passed  from 

•  J  Until  publication,  possession  of  a  libel  is  no  more  tban  the  possession  of  a  man's 
thoughts.  (Rex  v.  Almon,  5  Burr.  2689.)  So  long  as  the  writer  retains  possession 
of  the  writing  he  has  a  locus  penitentice ;  but  "  The  moment  a  man  delivers  a  libel 
from  his  hands,  and  ceases  to  have  control  over  it,  there  is  an  end  of  his  locus  peni- 
tentice ;  the  injuria  is  complete,  and  the  libeler  [the  writer]  may  be  called  upon  to 
answer  for  his  act"  (Rex  v.  Burdett,  4  B.  &  Aid.  143 ;  Holroyd,  J.);  and  see  5  Mod. 
167;  Holt  on  LibeL  294;  2  Starkie  on  Slander,  228;  Rex  v.  Rosenstein,  2  Car.  A  P. 
414. 

2  Holt  on  Libel,  289 ;  Bond  v.  Douglass,  7  C.  &  P,  626  ;  Miller  v.  Butler,  6  Cush. 
71 ;  Burdett  v.  Cobbett,  5  DowL  301 ;  Giles  v.  The  State,  6  Geo.  276. 

3  "Where  the  plaintiff  sent  his  agent  to  the  office  of  the  defendant,  the  publisher  of 
a  newspaper,  to  purchase  a  copy  of  the  paper,  held  that  a  sale  to  such  agent  was  a 
publication  to  a  third  person.  (Brunswick  v.  Harmer,  14  Q.  B.  185 ;  see  King  v. 
"Waring,  5  Esp.  Cas.  13;  Smith  v.  "Wood,  3  Camp.  323;  Thorn  v.  Moser,  1  Denio, 
488;  Griffiths  v.  Lewis,  7  Ad.  &  Ell.  N.  S.  61 ;  contra,  see  Sutton  v.  Smith,  13  IGsa. 
120;  Allen  v.  Crofoot,  2  "Wend  515;  Gordon  v.  Spencer,  2  Blackf.  286;  Hayes  v.  Le- 
and,  29  Maine  (16  Shep.)  233 ;  and  see  in  notes  to  §§  121,  123,  post.) 

4  Collins  v.  Middle  Level  Com'mrs,  Law  Rep.  IV,  C.  P.  279 ;  affirming  the  princi- 
ple in  Scott  v.  Shepherd,  2  "W.  Bl.  892. 


§  117.]  PUBLISHER.  151 

hand  to  hand,  and  each  such  passage  is  as  well  a  separate 
and  distinct  publication  as  a  republication  of  such  writing. 
Every  person  concerned  in  making  such  a  publication  is 
liable  not  alone  for  the  consequences  of  that  publication, 
but  for  the  consequences  of  any  subsequent  publication  of 
the  same  writing.  One  and  the  same  writing  may  be 
many  times  published  at  the  same  or  at  several  and  dis- 
tinct places,  and  may  have  mariy  publishers;  and  many 
persons  may  be  liable  as  publishers  at  one  and  the  same 
time  or  at  several  times.  The  subject-matter  of  a  writing 
cannot  be  republished  apart  and  separate  from  a  republi- 
cation of  the  writing,  the  material  written  upon.  Apart 
from  the  material  on  which  the  matter  is  inscribed,  it  is  as 
impossible  to  republish  the  same  subject-matter  of  a  writ- 
ting  as  it  is  to  republish  the  same  sound  or  oral  language 
of  speech.  If  one  copies  the  subject-matter  of  a  writing 
upon  another  piece  of  material,  the  copy  is  no  more  the 
same  subject-matter  as  the  subject-matter  copied  from, 
than  is  the  repetition  of  a  sound  an  uttering  of  the  same 
sound.  The  copy  is  not  the  same  writing  but  another — a 
second  and  independent  writing,  having  the  like  but  not 
the  same  subject-matter.  A  publication  of  this  copy  would 
have  no  other  connection  with  the  original  than  that  it 
contained  the  like  subject-matter.  The  persons  liable  for 
the  publication  of  the  first  writing  would  not  be  liable 
for  the  publication  of  the  second  or  the  coj)y,  and  the  per- 
sons responsible  for  the  publication  of  the  second  writing 
would  not  be  responsible  for  the  publication  of  the  original 
writing.  The  publication  of  the  second  writing  is  neither  a 
necessary  nor  a  natural  and  proximate  consequence  of  the 
publication  of  the  first  writing,  nor  is  a  publication  of  the  first 
writing  a  necessary  or  a  natural  and  proximate  consequence 
of  the  publication  of  the  second  writing.  It  may  be 
urged  that  but  for  the  publication  of  the  first  writing  the 
second  might  not,  or  perhaps  could  not,  have  come  into 
existence.  The  author  of  the  second  writing  could  not 
have  possessed  the  material  or  knowledge  requisite  for  its 


152  PUBLISHER.  [Ch.  VL 

production.  The  same  objection  would  apply,  and  with 
equal  force,  to  an  oral  publication.  If  the  first  speaker 
had  not  uttered  the  words  the  second  speaker  could  not 
have  repeated  them.  We  know  such  an  objection  would 
be  unavailing.  Again,  it  may  be  urged  that  the  one  who 
dictates  the  language  forming  the  subject-matter  of  a  wri- 
ting, which  is  afterwards  published  by  another,  is  respon- 
sible for  such  publication,  either  solely  or  jointly  with  the 
publisher,  or  that  the  writing  first  published  is  equivalent 
to  a  dictation  of  the  language  of  the  second  writing ;  but 
this  is  not  so ;  the  dictation,  to  incur  any  responsibility 
for  a  subsequent  publication  of  the  language  dictated, 
must  be  made  with  an  intent  or  a  request  that  the  lan- 
guage so  dictated  shall  be  subsequently  published  (§§ 
114,  115,  118). 

§  118.  There  may  be  a  joint  publication  by  writing, 
but,  for  the  reasons  heretofore  stated  (§  113),  there  cannot 
be  a  joint  oral  publication.  If  two  or  more  utter  the  like 
words,  either  simultaneously  or  separately,  it  is  not  a  joint 
publication,  but  a  several  publication  by  each,  for  which 
each  must  be  sued  separately,  and  for  which  they  cannot 
be  sued  jointly.1  Within  this  rule  husband  and  wife  are 
considered  as  separate  individuals.  If  husband  and  wife 
utter  the  like  words,  either  simultaneously  or  separately, 
there  are  two  publications — a  separate  publication  by 
each  (§  304).  For  the  words  uttered  by  the  husband  he 
must  be  sued  alone ;  for  the  words  uttered  by  the  wife, 

1  A  joint  action  cannot  be  maintained  against  two  or  more  persona  for  slander 
(Webb  v.  Cecil,  9  B.  Mon.  198;  Forsyth  v.  Edmiston,  2  Abb.  Pr.  R.  431;  5  Duer, 
653;  Chamberlaine  v.  Vilkuore,  Palm.  313;  1  Bulst,  15;  2  W.  Saund.  117  a;  The 
State  v.  Roulstone,  3  Sneed,  107;  2  Bish.  Crim.  Pro.  §  766;  Patten  v.  Gurney,  17 
Mas3.  182 ;  Heard  on  Libel,  222,  note  1 ;  Chamberlain  v.  White,  Cro.  Jac.  647.)  "  It  is 
an  established  rule,  both  here  and  in  England,  that  two  persons  cannot  join  as  pursu- 
ers in  an  action  of  calumny ;  but  if  defamatory  language  is  published  of  partners  in 
trade,  whereby  they  are  injured  in  their  trade,  a  joint  action  will  lie  at  the  suit  of  the 
partners  ;  and,  upon  an  extension  of  the  same  principle,  it  has  been  determined  that 
a  body  corporate  or  an  association  of  individuals  may  be  injured  by  scandal,  and  may, 
accordingly,  prosecute  for  redress  of  it.  (Society  of  Solicitors  v.  Robertson,  Novem- 
ber 16,  1781,  Mor.    13,  935,  Shearlock  v.  Beardsworth,  December  20,  1816,  2  Mur. 


§§  119,  120.]  PUBLISHER.  153 

the  husband  and  wife  must  be  sued  together.1  Two  or 
more  may  agree  together  (conspire)  in  composing  a  set  of 
words  which  one  or  both  shall  speak ;  that  is  to  say,  two 
or  more  may  conspire  to  injure  another  by  an  oral  publi- 
cation of  language ;  for  this  the  remedy  would  be,  not  an 
action  for  slander,  but  an  action  for  a  conspiracy  to 
defame.2 

§  119.  "Where  the  publication  is  the  joint  act  of  two  or 
more,  they  may  be  sued  jointly  or  separately ;  if  sued  sepa- 
rately, the  plaintiff  can  have  but  one  satisfaction,  but  may 
elect  de  meliorihus  damn  is.  Thus,  where  A.  brought  an 
action  of  libel  against  B.,  who  pleaded  puis  darrein  contin- 
uance, that  he  was  a  partner  with  C.  in  the  printing  and 
publishing  the  newspaper  which  contained  the  libel,  and 
that  A.  brought  a  previous  action  against  C.  for  the  same 
identical  publication,  and  recovered  a  judgment  which  had 
been  satisfied,  <fcc.  On  demurrer  this  was  held  a  good 
plea,  and  that  the  plaintiff  could  have  but  one  satisfaction, 
but  nnVht  elect  de  melioribus  damnis? 

§  120.  A  publication,  the  act  of  publishing,  must  be 
upon  some  occasion  (§  50),  and  must  be  voluntary  or  invol- 
untary (§  67).  Liability  as  publisher  depends  upon  the 
occasion  and  upon  whether,  as  to  the  person  sought  to  be 
charged,  the  publication  was  voluntary  or  involuntary, 
and  generally  upon  the  principles  to  which  reference  has 
heretofore  been  made   (§§  50,  67,  68,  70).     In  the  text 

Rep.  19./'  Borthwick  on  Libel,  174. — It  is  impossible  for  tbree  men  to  make  arbitra- 
ment by  word  of  mouth,  because  it  cannot  be  jointly  pronounced.  (Lawson's  Case, 
Clayt.  17,  A.  D.  1663 ;  and  see  Billings  v.  Russell,  8  Boston  Law  Rep.  N.  S.  699.) 

1  (Tait  v.  Culbertson,  57  Barb.  9.)  There  must  be  separate  actions  for  words 
spoken  by  a  husband  and  a  wife.  (Penters  v.  England,  1  M'Cord,  14;  Malone  v.  Still- 
well,  15  Abb.  Pr.  R.  425  ;  Switljen  v.  Vincent,  2  Wils.  227.)  Husband  and  wife  may 
be  jointly  sue  1  lor  a  libel  published  by  them  jointly.  (Catterall  v.  Kenyon,  3  Q.  B. 
310  ;  Keyvorth  v.  Hill,  3  B.  <fe  Aid.  685.)     See  Parties,  post. 

2  See  2  Hilliard  on  Torts,  444,  458  n. ;  8  Barr,  237 ;   10  id'.  369 ;  11  Met.  356. 

3  Thomas  v.  Rumsay,  6  Johns.  26 ;  Brown  v.  Ilirley,  5  Up.  Can.  Q.  B.  R.  (0.  S.) 
734;  Webb  v.  Cecil,  9  B.  Mon.  198. 

11 


154  PUBLISHER.  [Ch.  VL 

books  and  reports  much  is  said  on  the  subject  of  privileged 
publications,  employing  the  term  publication  to  mean  as 
well  the  act  of  publishing  as  the  matter  published ;  and 
these  privileged  publications  are  divided  into  such  as  are 
absolutely  privileged  and  such  as  are  conditionally  priv- 
ileged. Reserving  the  subject  of  privileged  publication  to 
be  hereafter  considered  at  length,  we  limit  ourself  here  to 
stating  that  all  involuntary  and  some  voluntary  publica- 
tions are  privileged. 

§  121.  Where  a  closed  paper  is  given  to  an  employe 
to  deliver  to  another,  it  becomes  the  duty  of  the  employe 
to  deliver  such  paper  as  directed,  without  inspecting  its 
contents,  and  in  making  the  delivery  without  ascertaining 
the  contents  of  the  paper,  he  performs  a  duty ;  and,  as  the 
performance  of  a  duty  is  an  involuntary  act  (§  39),  and 
cannot  amount  to  a  wrong  (§  42),  if  it  happen  that  the 
paper  contained  defamatory  matter,  the  employe  incurs  no 
liability.  The  act  of  publishing  defamatory  matter  was  as 
to  him  involuntary.  He  did  not  know,  and  was  not  under 
any  obligation  to  know,  the  contents  of  the  paper  carried 
and  delivered  by  him.  He  could  have  known  the  contents 
of  the  paper  only  by  a  violation  of  his  duty ;  having  sim- 
ply performed  his  duty,  no  liability  attached  to  him.1    But 

1  In  Nutt's  case,  as  reported  Barnard.  806,  it  is  said  :  if  a  servant  carries  a  libel 
for  his  master,  he  certainly  is  liable  for  what  he  does,  though  he  cannot  so  much  as 
read  or  write.  Mr.  Starkie  (2  Starkie  on  Slander,  29,  note/),  referring  to  this  dic- 
turn,  says :  "  It  is  impossible  not  to  dissent  from  this  doctrine,  so  expressed,  without 
the  qualification  added  that  the  servant  bad  some  reason  to  know  that  he  was  dis- 
charging an  illegal  mission."  That  the  defendant  could  not  read,  and  therefore  was 
ignorant  of  the  contents  of  the  paper  published  may  be  urged  in  mitigation.  (Rex  v. 
Holt,  5  T.  R.  444.)  To  constitute  a  publication  such  as  will  render  the  publisher 
liable  to  an  action,  the  publication  must  be  knowingly.  (Layton  v.  Harris,  3  Harring. 
406.)  Intentional.  (Viele  v.  Gray,  10  Abb.  Pr.  R.  12;  18  How.  Ft.  R  567.)  One  is 
not  liable  for  a  publication  inadvertently.  (Rex  v.  Abingdon,  1  Esp.  Cas  228.)  As 
by  delivering  by  mistake  a  paper  out  of  bis  study.  (5  Mod.  167  ;  Holt  on  Libel.  290.) 
Or  if  it  be  stolen  from  him.  See  Weir  v.  Hoss,  6  Ala.  S81  ;  Barrow  w.  Lewellin,  Hob. 
62;  1  Hill.  Torts,  321,  note  1 ;  §  116,  ante.  Reading  a  libel  in  the  presence  of  an- 
other without  knowing  it  before  to  be  a  libel,  with  or  without  malice,  does  not  amount 
to  a  publication.  (4  Bac.  Abr.  458  ;  Holt  on  Libel,  290.)  But  if  he  who  has  either 
read  a  libel  himself  or  has  heard  it  read  by  another,  do  afterwards  maliciously  read  or 


§  121.]  PUBLISHER.  155 

if,  in  such  a  case,  the  employe  does  in  fact  know  the  con- 
tents of  the  paper,  he  cannot  excuse  himself  by  saying  he 
carried  and  delivered  it  as  agent  or  employe  (§  67).  Ordi- 
narily it  would  be  said  that  the  non-liability  of  the  em- 
ploye, in  the  instance  above  put,  arose  from  the  absence  of 
"malice  on  his  part  in  making  the  publication ;  but  this  can 
only  mean  that  he  had  a  legal  excuse  for  performing  the 
act,  namely,  that  the  act,  so  far  as  it  was  wrongful,  was  as 
to  him  involuntary.  This  is  the  true  ground  for  the  deci- 
sions in  which  the  non-liability  is  said  to  be  the  absence  of 
malice.  Decisions  that  cannot  be  explained  on  this  ground 
were  either  erroneously  decided  or  decided  upon  erroneous 
grounds.  The  true  ground  for  the  decision  in  Smith  v. 
Ashley1  was,  the  absence  of  "  conscious  violation"  of  law, 
and  "culpable  knowledge?*  The  work  of  fiction  pub- 
repeat  any  part  of  it  in  the  presence  of  others,  or  lend  or  show  it  to  another,  he  is 
guilty  of  an  unlawful  publication  of  it.  (Hawk.  P.  C.  c.  73,  §  10 ;  Holt  on  Libel,  291.) 
Reading  a  libel  by  command  of  his  father  or  master  is  not  an  actionable  publication 
— so  said  Comyn's  Dig.  tit.  Libel,  B.  II,  and  cited  George  on  Libel,  162. 

If  a  man  deliver  by  mistake  a  libelous  paper  out  of  his  study,  he  would  probably 
be  held  liable  civilly,  for  the  publication  was  by  his  carelessness.  (Majne  v.  Fletcher, 
4  M.  &  Ry.  312.) 

"The  mere  act  of  communicating  that  which  is  slanderous  will  not  subject  a  party 
even  to  civil  liability  without  some  degree  of  culpability  on  his  part.  If,  for  instance, 
a  servant  or  agent  were  in  the  ordinary  course  of  his  duty  to  deliver  a  sealed  libel, 
without  any  knowledge  of  it3  contents,  though  he  were  thus  the  actual  instrument  of 
publication,  yet  if  he  acted  but  as  the  agent  of  another,  without  any  reason  for  sus- 
pecting that  any  wrong  was  intended,  he  would  not  subject  himself  to  any  civil,  still 
less  to  any  criminal"  responsibility."    (1  Starkie  on  Libel,  226,  [227].) 

In  an  action  against  the  defendant  for  publishing  libels,  it  appearing  that  five 
packets,  addressed  to  individuals  and  enclosed  in  one  addressed  to  him,  had  been  re- 
ceived at  the  coach-office  where  he  was  porter,  and  he  delivered  them;  held  that  if 
the  jury  found  that  he  did  so  in  the  course  of  his  business,  and  in  ignorance  of  the 
contents,  he  was  not  liable;  but  being  prima  facie  liable,  it  was  for  him  to  show  such 
ignorance.     (Day  v.  Bream,  2  M.  &  Rob.  54.) 

1  An  action  for  a  libel  cannot  be  maintained  against  the  publisher  of  a  newspaper, 
if  he  has  no  knowledge,  at  the  time  of  publication,  that  the  article  complained  of  is 
libellous.  Hence,  if  he  publishes  an  article  which  he  believes  to  be  a  fictitious  narra- 
tive, or  mere  fancj7  sketch,  and  does  not  know  that  it  is  applicable  to  any  one,  he 
cannot  be  held  responsible,  although  it  was  intended  by  the  writer  to  be  libellous, 
and  to  apply  to  the  party  who  brings  the  action.  In  such  case,  the  writer  only  is 
answerable  to  the  party  libeled.     (Smith  v.  Ashley,  11  Met.  367.) 

3  See  note  to  §  87,  ante.    "  He  who  shall  be  convicted  in  the  said  case  either  ought 


156  publishes.  [Ch.  VL 

lished  had  nothing  on  its  face  to  indicate  that  it  reflected 
upon  any  individual  or  his  affairs ;  the  publisher  did  not 
know,  and  had  no  means  of  knowing,  that  it  reflected  on 
any  individual  or  his  affairs ;  in  so  far,  therefore,  as  it  did 
reflect  upon  any  individual,  it  was  as  to  the  publisher  an 
involuntary  act,  equally  as  much  as  the  unconscious  deliv- 
ery by  an  employe  of  defamatory  matter  by  the  direction 
of  his  employer.  This  subject  will  be  further  discussed 
hereafter,  when  we  come  to  treat  of  defences. 

§  122.  Upon  the  principles  of  law  condensed  in  the 
expression  respondeat  superior,  one  is  responsible  not  only 
for  what  he  does  or  omits  to  do  in  his  own  proper  person, 
but  also  for  all  that  his  agents  may  do  or  omit  to  do  in  and 
about  his  business.  Every  one  is  charged  with  the  duty 
to  exercise  such  a  vigilance  in  the  selection  of  agents,  ani- 
mate and  inanimate,  as  are  competent  and  adequate  to  the 
performance  of  the  business  they  may  be  required  to  trans- 
act and  the  ends  they  may  be  designed  to  accomplish ;  he 
must  exercise  such  a  control  over  them  that  in  the  trans- 
action of  his  business  they  neither  do  or  omit  to  do  any  act 
amounting  to  a  wrong.  He  cannot  escape  this  liability  1  ly 
omitting  to  exercise  this  vigilance ;  for  such  omission  is 
itself  negligence.  It  is  upon  this  principle,  and  not  upon 
any  presumption  of  malice,  that  an  employer  or  principal 
is  held  responsible  for  the  act  of  his  servant  or  agent.1 

to  be  a  contriver  of  the  libel,  or  a  procurer  of  the  contriving  of  it,  or  a  malicious  pub- 
lisher of  it,  knowing  it  to  be  a  libel."    (9  Co.  59,  Mo.  813;  George  on  Libel,  107.) 

1  Legal  criminality  is  merely  legal  responsibility,  and  may  exist  where  there  is  no 
moral  criminality  whatever.  (Holt  on  Libel,  5  3.)  Malice,  in  legal  understanding, 
implies  no  more  than  wilfulness  {id.  55,  note  3,  p.  123,  ante),  and  between  negligence 
and  wilfulness  there  is  no  difference  but  of  degree.  (Bramwell  B.  Mangan  v.  Atterton, 
Law  Reports,  1  Ex.  240.)  Negligence  embraces  acts  of  commission  as  well  as  of  omis- 
sion, and  diligence  implies  action  as  well  as  forbearance  to  act.  (Grant  v.  Mosely,  29 
Ala.  302.)  But  the  only  principle  on  which  a  man  can  be  rendered  liable  for  the 
wrongful  acts  of  another,  is  that  such  a  relation  exists  between  them  that  the  former, 
whether  he  be  called  principal  or  master,  is  bound  to  control  the  conduct  of  the  latter 
whether  he  be  agent  or  servant.  The  maxim  of  the  law  is  respondeat  superior. 
(Blackwell  v.  Wiswall,  14  How.  Pr.  R.  258.) 

The  rule  of  liability  [of  a  principal  for  the  acts  of  his  agents],  is  not  based  upon 


§  123.]  PUBLISHER.  157 

§  123.  The  proprietor  of  a  newspaper  is  responsible 
for  all  that  appears  in  its  columns,  although  the  publication 
may  have  been  made  without  his  knowledge,  in  his 
absence,  and  contrary  to  his  orders.  His  liability  is  not  on 
the  ground  of  his  being  the  publisher,  nor  of  being  pre- 
sumed to  be  the  publisher,  but  because  he  is  responsible 
for  the  acts  of  the  actual  publisher.1 

any  presumed  authority  in  the  agent  to  do  the  acts,  but  upon  the  ground  of  public 
policy.  (Lee  v.  Village  of  Sandy  Hill,  40  N.  Y.  448 ;  Farmers'  B'k  v.  Butchers'  B'k 
16  N.Y.  133.)  The  wrongful  act  is  the  servant's  in  fact  and  the  principal's  by  construc- 
tion. (Bruff  v.  Mali,  34  How.  Pr.  R.  344.)  It  is  said  to  be  the  law  that  a  master  is 
responsible  for  all  wrongful  acts  of  his  servant,  within  the  scope  of  his  emploj'ment 
and  in  executing  the  matter  for  which  he  was  engaged  at  the  time.  See  Allen  v. 
London  &  S.  W.  R'way,  Law  Rep.  VI,  Q.  B.  67. 

In  an  action  for  a  libel  contained  in  a  letter  :  Proof  that  it  was  written  by  defend- 
ant's daughter,  who  was  authorized  to  make  out  his  bills  and  write  his  general  letters 
of  business,  is  not  sufficient,  unless  it  can  be  shown  that  such  libel  was  written  with 
the  knowledge  of  or  by  the  procurement  of  the  defendant.  (Harding  v.  Greening,  1 
Moore,  477;  1  Holt  N.  P.  531 ;  8  Taunt.  42.)  Writing  the  letter  was  not  within  the 
scope  of  the  daughter's  authority  to  act  for  her  father.  (Id.)  A  parent  is  not  liable 
as  such  for  the  wrongful  acts  of  his  child.  (Tifft  v.  Tifft,  4  Denio,  1*75,  and  see  Moon 
v.  Towers,  8  Com.  B.  N.  S.  611.) 

If  an  attorney  introduces  slanderous  matter  into  the  pleadings,  without  the  direc- 
tion of  his  client,  the  client  is  not  responsible.  (Hardin  v.  Cumstock,  2  A.  K.  Marsh, 
480.) 

1  The  proprietor  of  a  newspaper  is  responsible  for  whatever  appears  in  its 
columns.  It  is  unnecessar}*  to  show  that  he  knew  of  the  publication,  or  authorized  it. 
(Huff  v.  Bennett,  4  Sand.  120.)  For  he  is  liable  even  though  the  publication  was 
made  in  his  absence  and  without  his  knowledge  by  an  agent  to  whom  he  had  given 
express  instructions  to  publish  nothing  exceptionable,  personal,  or  abusive,  which 
might  be  brought  in  by  the  author  of  the  libel.  (Dunn  v.  Hall,  1  Carter  (Ind.),  345  ; 
1  Smith,  288.)    And  see  Curtis  v.  Mussey,  6  Gray  (Mass.),  261. 

An  action  for  a  libel  lies  against  the  proprietor  of  a  gazette  edited  by  another, 
though  the  publication  was  made  without  the  knowledge  of  such  proprietor. 
(Andres  v.  Wells,  7  Johns.  260.) 

But  if  a  printing  press  and  newspaper  establishment  be  assigned  to  a  person 
merely  as  security  for  a  debt,  and  the  press  remains  in  the  sole  possession  and 
management  of  the  assignor,  the  ownership  of  the  person  holding  the  security  or  lien 
is  not  such  as  will  render  him  liable  to  an  action  as  proprietor.     (Id.) 

A  receiver  of  a  newspaper  establishment,  appointed  to  take  charge  thereof,  and 
continue  the  publication  of  the  newspaper,  would  be  responsible  for  any  defamatory 
matter  published  in  the  newspaper  while  the  same  was  under  his  control.  (Marten  v. 
Van  Schaick,  4  Paige,  4*79.)  A  receiver  was  appointed  to  carry  on  the  publication 
of  a  newspaper  in  Dayton  v.  Wilkes,  17  How.  Pr.  R.  510. 

The  editor  and  publisher  of  a  newspaper  is  answerable  in  law,  if  its  contents  are 
libelous,  unless  the  libelous  matter  was  inserted  by  some  one  without  his  order  and 
against  his  will.     (The  Commonwealth  v.  Kneeland,  Thacher's  Crim.  Cas.  346.) 


158  PUBLISHES. 

§  124.  The  liability  of  the  proprietor  of  a  newspaper 
is  shared  in  common  with  the  proprietor  of  a  printing- 
press,  a  printer,  "book  publisher,  and  bookseller.  The 
proprietor  of  a  bookstore  is  liable  for  the  contents  of  every 
book  and  paper  sold  in  his  store.1 

Rex  v.  Gutch,  1  Moo.  &  Mai.  433,  on  the  trial  of  defendant  for  publishing  a  libel 
in  a  newspaper  of  which  he  was  the  proprietor,  it  was  contended  on  his  behalf  that  he 
was  not  liable,  because  he  took  no  part  in  the  publication  of  the  newspaper ;  but  he 
was  held  liable  and  the  court  said :  "A  person  who  derives  profit  from  and  who 
furnishes  means  for  carrying  on  the  concern,  and  entrusts  the  conduct  of  the  publica- 
tion to  one  -whom  he  selects,  and  in  whom  he  confides,  may  be  said  to  cause  to  be 
published  what  actually  appears  ;  "  and  see  Rex  v.  Alexander,  1  Moo.  &  Mai.  437  ; 
3  Albany  Law  Jour.  46,  and  see  Atty.  Genl.  v.  Siddon,  1  Cr.  <fe  Jer.  220. 

2  "  It  is  not  material  whether  the  person  who  disperses  libels  is  acquainted  with 
their  contents  or  otherwise,  for  nothing  would  be  more  easy  than  to  publish  the  most 
virulent  papers  with  the  greatest  security,  if  the  concealing  the  purport  of  them  from 
an  illiterate  publisher  would  make  him  safe  in  dispersing  them.  (2  Starkie  on  Slander, 
30,  note  z. ;  Moore,  62V ;  Wood's  Inst.  431 ;  Bac.  Abr.  tit.  Libel,  458.)  See  note,  p.  154 
ante. 

Kutt's  Case,  Fitzg.  47;  Barnard.  306:  The  defendant  was  tried  for  publishing  a 
libel.  It  appeared  in  evidence  the  defendant  kept  a  pamphlet  shop,  and  that  the  libel 
was  sold  in  defendant's  shop,  by  her  servant,  for  her  account,  in  her  absence,  and  that 
she  did  not  know  the  contents  of  it,  nor  of  its  coming  in  or  going  out.  This  was 
held  to  be  a  publication  by  the  defendant,  but  a  jury  was  withdrawn. 

Rex  v.  Dodd,  2  Sess.  Cas.  33 :  The  defendant  was  tried  for  publishing  a  libel. 
It  was  insisted  for  the  defendant  that  she  was  sick,  and  that  the  libel  was  taken  into 
her  house  without  her  knowledge ;  this  was  held  no  excuse,  the  law  presumed  her 
acquainted  with  what  her  servant  did. 

In  Rex  v.  Ahnon,  5  Burr.  2689,  the  liability  of  booksellers  was  much  discussed, 
and  the  court  expressed  an  opinion  that  the  sale  of  a  libel  in  a  booksellers's  shop  was 
prima  fade  evidence  of  a  publication,  though  not  so  conclusive  but  that  it  might  be 
rebutted  by  circumstances.  It  is  said  (2  Starkie  on  Slander,  34) ;  "  But  the 
defendant  may  rebut  the  presumption  by  evidence  that  the  libel  was  sold  contrary  to 
his  orders,  or  clandestinely;  or  that  some  deceit  or  purprise  was  practiced  upon  him ; 
or  that  he  was  absent  under  circumstances  which  entirely  negative  any  presumption 
of  privity  or  connivance."  And  reference  is  made  to  Rex  v.  Almon,  supra,  and  to 
Woodfalls'  Case,  where  the  publication  was  by  a  servant  of  the  defendant,  the  de- 
fendant being  at  the  time  within  prison  walls.  In  Rex  v.  Fisher,  1  Moo.  &  Mai.  433, 
it  is  said  the  presumption  arising  from  proprietorship  of  a  newspaper  may  be 
rebutted,  and  an  exemption  established.  If  the  publication  is  made  without  the  con- 
sent of  the  writer,  the  offence  is  not  complete  as  to  him.  (Weir  v.  Hoss,  6  Ala.  881. 
See  Holt  on  Libel,  294.)  As  if  the  writing  be  stolen  from  him.  (Mayne  v.  Fletcher, 
9  B.  &  C.  3S2.) 

In  Chubb  v.  Flanaghan,  6  Car.  &  P.  431,  it  was  held  that  if  a  publication  consists 
in  merely  selling  a  few  copies  of  a  periodical  in  which  the  libel  was  contained  among 
the  articles,  it  was  a  question  for  the  jury  whether  the  defendant  knew  what  he  was 
selling. 


CHAPTER  VII. 

CONSTRUCTION  OF    LANGUAGE. 

Actionable  quality  of  language  dependent  upon  its  con- 
struction— All  language  ambiguous  or  unambiguous — 
Difficidt  to  determine  what  is  and  what  is  not  ambiguous 
— Points  upon  which  ambiguity  arise — Causes  of  am- 
biguity— Ambiguity,  how  explained — Different  effect  of 
language  concerning  a  person  and  of  language  concern- 
ing a  thing — Materiality  of  questions,  what  person  or 
thing  affected,  and  whether  the  person  is  affected  as  an 
individual  merely,  or  in  some  acquired  capacity — Prin- 
ciples of  construction;  before  verdict — after  verdict — 
Examples  of  construction — Divisible  matter. 

§  125.  Language  as  a  means  for  effecting  a  wrong 
must  be  either  such  as  is  actionable  or  such  a,s  is  not  action- 
able. To  which  of  these  divisions  any  particular  language 
is  to  be  referred,  may  depend  upon  the  construction  of  the 
language  in  question.  Anterior,  therefore,  to  an  inquiry 
into  what  language  is  and  what  language  is  not  actionable, 
it  is  proper  here  to  consider  at  least  the  principal  rules  by 
which  alleged  defamatory  language  is  construed.  The 
question  as  to  when  the  construction  is  with  the  court, 
and  when  by  the  jury  is  discussed  in  a  subsequent  chapter 
(§§  281-286). 

§  126.  Language  may  be  ambiguous  or  unambiguous.1 

1  "Words  or  signs  may  be  divided  into  three  classes:  (1)  those  which  bear  an 
obvious  and  precise  meaning  on  the  face  of  them  ;  as  if  A.  say  to  B.,  you  murdered  C. ; 
(2)  those  which  on  the  face  of  them  are  of  dubious  import,  and  are  capable  either  of  a 
criminal  or  innocent  meaning ;  as  if  A.  says  to  B.,  you  were  the  death  of  C  ;  (3) 
those  which  are  prima  facie  and  abstractedly  innocent,  and  which  derive  their 
offensive  quality  from  some  collateral  or  extrinsic  circumstances;  as  if  A.  says  to  B., 


160  CO-NSTKUCTIOX    OF    LANGUAGE.  [Ch.    VII 

It  is  not  easy  in  every  case  to  determine  what  is  ambiguous 
and  what  is  unambiguous  language.  Language  may  be 
unambiguous  on  its  face,  which,  by  reason  of  some  cir- 
cumstances connected  with  it,  is  in  fact  ambiguous.  This 
is  always  the  case  with  language  used  ironically.  When 
language  is  unambiguous  on  its  face  it  must  be  construed 
as  unambiguous,  unless  its  ambiguity  be  shown ;  and  on 
the  one  who  asserts  the  ambiguity  of  language  unambig- 
uous on  its  face,  is  the  burden  of  establishing  the  ambiguity.1 

§  127.  When  language  is  ambiguous,  the  ambiguity 
may  be  either  (1)  whether  the  language  concerns  a  per- 
son or  a  thing,  or  (2)  what  person  or  what  thing  it  con- 
cerns, or  (3)  if  it  concerns  a  person  does  it  concern  him  as 
an  individual  merely  or  in  some  acquired  capacity,  as  in  an 
office,  trade  or  profession  ;  (4)  what  is  the  import  or  sig- 
nification of  the  language,  and  (5)  is  the  charge  or  matter 
divisible  or  indivisible. 

§  128.  The  ambiguity  may  be  patent  or  latent,  that  is 
to  say,  the  ambiguity  may  be  inherent  in  the  language  and 
apparent  upon  its  face,  or  the  ambiguity  may  arise  by  rea- 
son of  the  language  in  question  being  connected  with 
some  other  language  or  event  in  such  a  manner  as  that  its 

you  did  not  murder  O,  which  words,  from  the  ironical  manner  of  speaking  them,  may 
convey  to  the  hearers  as  unequivocal  a  charge  of  murder  as  the  most  direct  imputa- 
tion."   (1  Starkie  on  Slander,  46.) 

1  "  Where  the  words  of  themselves  impute  a  larceny,  and  are  unaccompanied  by 
an  explanation  showing  the  hearers  that  they  were  not  so  intended,  the  defendant  must 
show  that  they  referred  to  a  transaction  that  was  not  larceny,  and  were  so  understood 
by  all  who  heard  them.  And  where  the  plaintiff  had  taken  wood  through  mistake, 
and  the  defendant,  knowing  the  excuse  for  taking  it,  persists  iu  charging  him  with 
stealing,  in  reference  to  such  taking,  he  cannot  fall  back  and  rest  upon  the  plaintiff's 
innocence."     (Phillips  v.  Barber,  7  Wend.  439.) 

"  As  doubtful  or  apparently  innocent  words  may  by  circumstances  be  shown  to  be 
actionable,  so  may  words  apparently  actionable  be  explained  by  circumstances  to 
have  been  intended  and  understood  in  an  innocent  sense.  Thus,  though  the  defendant 
should  say,  Thou  art  a  murtherer,  the  words  would  not  be  actionable  if  the  defendant 
could  make  it  appear  that  he  was  conversing  with  the  plaintiff  concerning  unlawful 
hunting,  when  the  plaintiff  confessed  that  he  killed  several  hares  with  certain  engines, 
upon  which  the  defendant  said,  Thou  art  a  murtherer,  meaning  a  murtherer  of  hares 
so  killed.     4  Co.  13."     (1  Starkie  on  Slander,  98.) 


§§  129,  130.]      CONSTRUCTION"    OF   LANGUAGE.  161 

accustomed  signification  is  affected  and  changed  by  such 
other  language  or  event. 

§  129.  The  ambiguity  of  language  unambiguous  upon 
its  face  is  shown,  and  the  ambiguity  of  language  in  every 
case  is  explained,  by  introducing  the  other  language  or 
event  which  exhibits  or  which  explains  the  ambiguity, 
and  by  alleging  the  supposed  true  meaning  of  the  language 
in  question.  The  manner  by  which  ambiguity  is  shown 
and  explained  is  by  allegations  in  pleading,  termed  aver- 
ments, colloquia,  and  innuendoes,  the  nature  and  ofhces  of 
which  several  allegations  will  be  considered  under  the 
head  of  Pleading.1 

§  130.  Whether  the  language  concerns  a  person  or  a 
thing,  i.  e.  the  affairs  of  a  person  (§§  25,  27,  28),  is  ma- 
terial in  this  respect :  that  language  when  it  concerns  a 
person,  and  is  discommendatory,  is  always,  in  the  absence 
of  any  evidence  to  the  contrary,  regarded  as  uncalled  for, 
as  published  without  any  lawful  excuse,  and  as  not  to  be 
believed  or  considered  as  true  unless  its  truth  be  estab- 
lished ;  or,  as  the  phrase  is,  such  language  is  presumed  to 
be  malicious  and  false.     But  as  to  language  concerning  a 


1  An  averment  is  to  ascertain  that  to  the  court  which  is  generally  or  doubtfully 
expressed,  so  that  the  court  may  not  be  perplexed  of  whom,  or  of  what,  it  [the  lan- 
guage] ought  to  be  understood,  and  to  add  matter  to  the  plea  to  make  doubtful  things 
clear.  A  colloquium  serves  to  show  that  the  words  were  spoken  in  reference  to  the 
matter  of  the  averment.  An  innuendo  is  explanatory  of  the  subject-matter  sufficiently 
explained  before,  and  it  is  explanatory  of  such  matter  only ;  for  it  cannot  extend  the 
sense  of  the  words  beyond  their  own  meaning  unless  something  is  put  upon  the  record 
for  it  to  explain.     (Van  Vechten  v.  Hopkins,  5  Johns.  220.) 

It  seems  that  in  some  instances  where  the  language  is  unambiguous  on  its  face  the 
plaintiff  will  not  be  allowed  to  treat  it  as  ambiguous  and  give  it  a  meaning  different 
from  that  it  ordinarily  bears.  Thus  the  words  spoken  of  a  dyer  were  "  Thou  art 
not  worth  a  groat,"  the  plaintiff  alleged  that  at  E.,  where  the  words  were  spoken, 
they  were  all  one  as  calling  him  Bankrupt.  The  court  held  the  averment  idle,  be- 
cause the  words  in  themselves  imply  a  plain  and  intelligible  sense.  (Meade  v. 
Axe,  Mar.  15,  pL  37.)  "It  is  not  allowable  to  interpret  what  has  no  need  of  inter- 
pretation, and  when  the  words  have  a  definite  and  precise  meaning,  to  go  elsewhere 
in  search  of  conjecture  in  order  to  restrict  or  extend  the  meaning."  (McCluskey  v. 
Cromwell,  11  N.  T.  601 ;  Bartlett  v.  Robinson,  6  Trans.  App.  166.) 


162  CONSTRUCTION    OF   LANGUAGE.  [Ch.  "VTL 

thing  no  such  presumption  is  indulged ;  and  upon  those 
who  allege  language  concerning  a  thing  to  be  false  and 
malicious  is  the  burden  of  establishing  those  conclusions 
by  other  evidence  than  that  afforded  by  a  mere  publica- 
tion of  the  language.  And  besides,  to  give  a  cause  of 
action  for  language  concerning  a  thing,  damage  gen- 
eral or  special  must  in  all  cases  be  alleged  and  proved.1 

While  a  distinction  has  been  actually  maintained  be- 
tween language  concerning  a  person  and  language  concern- 
ing a  thing,  the  essential  grounds  of  the  distinction  seems 
not  to  have  been  clearly,  nor  indeed  rightly,  apprehended. 
That  branch  of  the  law  of  libel  known  as  "  Slander  of 
Title,"  has  been  regarded  as  something  distinct  from  Slan- 
der and  Libel,  properly  so  called,  whereas  in  reality 
slander  of  title  is  but  a  portion  of  that  division  of  the 
law  relating  to  wrongs  by  language  which  includes  lan- 
guage concerning  things.2  The  rules  relating  to  slander  of 
title  apply  to  all  language  concerning  things,  but  where 
the  language  concerns  both  a  person  and  a  thing,  it  is 
governed  by  the  rules  which  relate  to  language  concerning 

J  See  Swan  v.  Tappan,  5  Cush.  104;  Ingram  v.  Lawson,  6  Bing.  N.  C.  212;  8- 
Scott,  5*71 ;  Evans  v.  Harlow,  5  Q.  B.  624 ;  Kendall  v.  Stone,  5  N.  Y.  14,  reversing 
s.  c.  2  Sand.  269 ;  Hargrave  v.  Le  Breton,  4  Burr.  2422 ;  Smith  v.  Spooner,  3  Taunt. 
246;  Bailey  v.  Dean,  5  Barb.  297;  Linden  v.  Graham,  1  Duer,  6*70;  Tobias  v.  Har- 
land,  4  Wend.  53*7;  McDaniel  v.  Baca,  2  Cal.  326;  Hamilton  v.  Walters,  4  Up.  Can. 
Q.  B.  Rep.  0.  S.  24. 

2  Debated  if  slander  of  title  within  statute  21  Jac.  1,  ch.  xvi,  actions  on  the  case 
for  slander,  held  by  three  judges  against  one,  that  it  was  not ;  "  that  action  on  the 
case  for  slander  "  referred  to  the  person  of  a  man  and  not  to  the  title  of  lands.  For 
this  is  not  properly  a  slander  but  a  cause  of  damage.  (Lowe  v.  Harwood,  Cro.  Car. 
140.)  "  An  action  for  slander  of  title  is  not  properly  an  action  for  words  spoken  or 
libel  written  and  published,  but  an  action  on  the  case  for  special  damage  sustained  by 
reason  of  the  speaking  or  publication  of  the  slander  of  the  plaintiffs  title.  This 
action  is  ranged  under  that  division  of  actions  in  the  Digests  and  other  writers  on 
the  text  law,  and  is  so  held  by  the  courts  at  the  present  day.  Malachy  v.  Soper,  3 
Bing.  N.  C.  371  ;  3  Scott,  '723."  (Heard  on  Libel,  §  59.)  "An  action  of  slander  of 
title  is  a  sort  of  metaphorical  expression."  (Maule,  J.,  Pater  v.  Baker,  3  C.  B.  831.) 
"  The  cause  of  action  is  denominated  slander  of  title  by  a  figure  of  speech,  in  which 
the  title  to  land  is  personified  and  made  subject  to  many  of  the  rules  applicable  to 
personal  slander,  when  the  words  in  themselves  are  not  actionable."  (Gardiner, 
J.,  Kendall  v.  Stone,  5  N.  Y.  14;  see  post,  note  to  §  150.) 


§  131.]  CONSTRUCTION    OF   LANGUAGE.  163 

the  person.  The  question  whether  the  language  concerns 
a  person  or  a  thing  arises  in  cases  of  alleged  privileged 
publications  in  the  form  of  criticisms  on  books,  works  of 
art,  or  places  of  public  entertainment.  It  must  be  deter- 
mined in  those  cases  whether  in  point  of  fact  the  language 
of  the  criticism  was  concerning  the  thing:  the  book, 
the  work  of  art,  the  entertainment,  or  concerning  the  per- 
son :  the  author,  the  artist,  or  the  proprietor  of  the  place ; 
and  according  to  the  decision  of  that  question  may  the 
language  be,  or  not  be,  actionable.  We  shall  advert  to 
this  hereafter,  in  treating  of  the  actionable  quality  of  lan- 
guage concerning  things,  and  of  defences  (§§  203,  251). 

§  131.  What  person  or  what  thing  the  language  con- 
cerns is  material;  as  upon  the  answer  to  that  question 
depends  whether  the  party  complaining  has,  or  has  not, 
any  right  to  redress.  Of  course  unless  the  language  con- 
cerns either  the  person  or  the  affairs  of  the  person  com- 
plaining, no  wrong  can  have  been  done  him  of  which  he 
can  rightfully  complain 1  (§  343). 

1  In  action  for  scandalous  words  it  is  requisite  that  "  the  person  scandalized  be 
certain."  (James  v.  Rutledge,  4  Rep.  17  b.)  "  Xo  writing  whatever  is  to  be  esteemed 
a  libel  unless  it  reflects  upon  some  particular  person,"  (Hawk.  P.  C,  c.  79,  §  9.) 
After  quoting  the  foregoing  sentence,  Holt  (Holt  on  Libel,  246)  adds:  "This  is  un- 
questionably true,  as  it  relates  to  the  action  on  the  case  for  slander,  in  which  the 
party  complaining  must  show  himself  to  be  meant  by  the  libel."  (Holt  on  Libel, 
247;  Harvey  v.  Coffin,  5  Blackf.  566.)  It  is  not  material  whether  the  person  is  de- 
scribed nominally  or  indirectly,  provided  his  identity  be  ascertained.  (Sumner  v. 
Buel,  12  Johns.  475.)  Identity  is  presumed  from  identity  of  name.  (Jackson  v. 
Goes,  13  Johns.  518;  Jackson  v.  King,  5  Cow.  237;  Jackson  v.  Cody,  9  Cow.  140; 
Hamber  v.  Roberts,  18  Law  Jour.  R.  (N.  S.)  250,  C.  P.;  7  C.  B.  SCO;  Sewall  v.  Evans, 
4  Q.  B.  626 ;  Simpson  v.  Dismore,  9  M.  ^  W.  47,  1  Dowl.  P.  C.  N.  S.  357;  Hatcher  v. 
Rocheleau,  18  N.  Y.  86,  but  see  Jackson  v.  Christman,  4  Wend.  277  ;  Whitlocke  v. 
Musgrove,  1  CAM.  511 ;  Jones  v.  Jones,  9  M.  &  W.  75 ;  Greenshields  v.  Crawford, 
id.  314  ;  1  Dowl.  P.  C.  N.  S.  439.)  Where  the  language  is  not  applicable  to  the  plain- 
tiff (does  not  concern  the  person)  no  averment  or  innuendo  can  make  it  so.  (Solomon 
v.  Lawson,  8  Q.  B.  823;  Ingram  v.  Lawson,  6  Bing.  N.  C.  212;  8  Scott,  571  ;  Dot- 
tarer  v.  Bushey,  16  Penns.  208;  Swan  v.  Tappan,  5  Cush.  104;  Vin.  Abr.,  Act.  for 
Words,  H.  b.  12,  13.)  Where  the  language  is  applicable  to  the  plaintiff,  although 
not  so  upon  its  face  to  maintain  an  action  therefor  he  must  by  averment  introduce  such 
facts  as  make  it  apparent  that  persons  who  knew  him  would,  on  hearing  or  reading 
such  language,  perceive  its  application  to  him.     (Miller  v.  MaxwehV16  Wend.  9.) 


164  CONSTRUCTION    OF    LANGUAGE.  [CL  VII. 

§  132.  When  the  language  concerns  a  person,  it  is 
material  further  to  inquire  whether  it  concerns  him  as  an 
individual  merely,  or  in  some  acquired  capacity,  as  in  an 
office,  trade  or  profession,  because  language  which  would 
not  be  actionable  if  it  concerned  one  as  an  individual 
merely,  may  be  actionable  if  it  concerns  him  in  his  office, 
trade,  or  profession  (§  179). 

He  cannot  show  the  application  of  the  language  to  himself  by  an  innuendo  alone. 
(Wilson  v.  Hamilton,  9  Rich.  Law  (So.  Car.),  382;  Maxwell  v.  Allison,  11  S.  &  R. 
343;  Turner  v.  Merryweather,  7  C.  B.  251 ;  Tyler  v.  Tillotson,  2  Hill,  507  ;  see  §  343, 
post.)  Thus  it  is  not  sufficient  to  allege  that  the  defendant  said,  "  R.  saw  a  young  man 
(meaning  the  plaintiff)  ravishing  a  cow."  (Harper  v.  Delph,  3  Ind.  225.)  Or,  W.  or 
somebody  altered  the  indorsement  on  a  note.  (Ingalls  v.  Allen,  Breeze,  233.)  I  know 
of  but  one  man  who  owes  me  enmity  enough  to  do  such  a  thing,  and  you  know  whom 

I  mean.  (Robinson  v.  Drummond,  24  Ala.  174.)  A.  was  supervisor  of  an  election,  at 
which  there  was  false  swearing.  (Lewis  v.  Soule,  3  Mich.  514.)  And  held  that  the 
postmaster  of  J.  could  not  maintain  an  action  for  words  spoken  of  a  missing  letter 
containing  the  resignation  of  one  M. :  "  I  do  not  think  M.'s  resignation  has  gone  to 
Washington.  I  have  no  doubt  it  was  embezzled  at  J."  (Taylor  v.  Kneeland,  1  Doug. 
67.)  For  the  words,  "All  the  bravery  you  (A.)  ever  showed  was  sleeping  with  your 
sisters,"  held  that  the  sisters  of  A.  could  not  sue.  (Mallison  v.  Sutton,  1  Smith  (Ind.) 
364.)  For  calling  W.  a  bastard,  the  mother  of  W.  could  not  sue  for  the  imputation  upon 
her  without  proper  averments  connecting  the  allegation  with  her.  (Maxwell  v.  Allison, 

II  S.  &  R.  343.)  An  action  may  be  supported  for  language  in  which  the  plaintiff  is 
described  directly  or  indirectly,  though  his  name  is  not  given.  In  which  case  the 
whole  of  the  publication  must  be  considered,  in  determining  whether  the  averments 
be  sufficient  to  make  it  applicable  to  the  plaintiff  (Cook  v.  Tribune  Association,  5 
Bl.  C.  C.  352),  with  proper  averments  showing  the  plaintiff  to  be  intended,  one 
may  bring  an  action  for  words  concerning  on  their  face  "  his  friend''  (Clark  v.  Creitz- 
burgh,  4  M'Cord,  491) ;  or  the  "  surgeon  of  whiskey  memory  "  (Miller  v.  Maxwell,  16 
Wend.  9) ;  or  the  "  man  at  the  sign  of  the  Bible "  (Steele  v.  Southwick,  9  Johns. 
214);  or,  O.  B.  (O'Brien  v.  Clements,  16  M.  &  W.  159);  or  "desperate  adventurers" 
(Wakley  v.  Healey,  18  Law  Jour.  241,  C.  P.)  "The  writer  in  the  Register  who  was 
deprived  of  a  twopenny  justiceship  for  malpractice  in  packing  a  jury"  (Mix  v.  Wood- 
ward, 12  Conn.  262);  and  see  "One  who  edits  the  Times"  (Tyler  v.  Tillotson,  2  Hill, 
507);  "Filly  Horse"  (Weir  v.  Hoss,  6  Ala.  881).  Where  B.  had  been  accused  of 
stealing  a  tray  of  biscuits,  and  A.  said  in  the  hearing  of  B.  and  of  other  persons, 
that  if  they  did  not  look  out  he  would  make  the  tray  of  biscuits  roar,  held,  that  with 
proper  averments  connecting  B.  with  this  language  of  A.,  B.  might  maintain  an  ac- 
tion against  A.  (Briggs  v.  Byrd,  21  Ired.  353.)  The  words  "  I  am  a  true  subject, 
and  thou  servestno  true  subject,"  spoken  to  the  servant  of  I.  S.,  held  sufficient  to  give 
a  right  of  action  to  I.  S.  (Vin.  Abr.,  Act.  for  Words,  C  b.  1.)  And  so  of  the 
words,  "Thy  master,  Mr.  Browne,  hath  robbed  me."  (Id.  3.)  If  A.  says  to  B.,  One 
of  us  two  is  perjured,  and  B.  say  to  A.,  It  is  not  I,  and  A.  says  again,  It  is  not  I,  B. 
may  maintain  an  action.  (Id.  4  ;  Coe  v.  Chambers,  1  Rolle  Ab.  75.)  For  the  words 
"  Thy  son  hath  robbed  "  me,  the  son  of  the  person  spoken  to  may  maintain  an  action 
if  he  be  the  only  son  ;  and  if  one  say  to  a  son,  thy  father,  or  to  a  wife,  thy  husband 


§  133.]  CONSTRUCTION    OF   LANGUAGE.  165 

§  133.  Tile  different  effect  which  in  certain  cases  is  at- 
tributed to  written,  as  distinguished  from  oral  language, 
does  not  extend  to  the  construction  of  lano-uas;e  with  a 


hath  robbed  me,  the  father  or  the  husband  may  have  an  action.  (Vin.  Abr.  Act.  for 
Words,  C.  B.  6;  H.  b ;  Kb;  and  see  Ralph  v.  Davye,  Sty.  150;  Brent  v.  Ingram^ 
Cro.  Eliz.  36 ;  Anderson  v.  Stewart,  8  Up.  Can.  Q.  B.  Rep.  243.)  For  the  words 
"  Your  boys  stole  my  corn,"  "  your  children  are  thieves,"  either  of  the  sons  in  the 
one  case,  and  of  the  children  in  the  other,  may  sue.     (Maybee  v.  Fisk,  42  Barb.  326  ; 

Gibney  v.  Blake,  11  Johns.  54;  and  see  Henacre  v.  ,  Keb.  525.)     And  for  the 

words,  A.  or  B.  killed  T.  S.,  either  A.  or  B.  may  sue.  (Falkner  v.  Cooper,  Carth.  56.) 
And  where  several  are  included  in  the  same  libel,  they  may  each  maintain  a  separate  ac- 
tion. (Smart  v.  Blanchard,  42  N.  Hamp.  137;  Ellis  v.  Kimball,  16  Pick.  132.) 
Where  the  language  affects  a  particular  class  of  men,  as  for  instance  men  of  the 
gown,  it  gives  no  right  of  action  to  an  individual  of  that  class.  (Ryckman  v.  Dela- 
van,  25  Wend.  186;  rev'g  White  v.  Delavan,  17  Wend.  49.)  And  see  Ellis?;.  Kim- 
ball, 16  Pick.  132;  Le  Faun  v.  Malcolmson,  1  Ho.  of  Lords  Cas.  637.  Thus  where 
Ensign  Sumner  brought  an  action  against  Buel  for  defamatory  matter  published  by 
Buel,  reflecting  on  the  character  of  the  officers  generally  of  the  regiment  to  which  the 
plaintiff  belonged,  it  was  held  by  a  majority  of  the  court  that  the  action  could  not  be 
maintained,  and  that  the  appropriate  remedy  in  such  a  case  was  indictment.  (Sum- 
ner v.  Buel,  12  Johns.  475.)  An  information  may  issue  in  such  a  case.  See  Rex.  v. 
Baxter,  12  Mod.  139;  L'd  Rayni.  879;  Rex  v.  Osborne,  2  Barnard.  138  ;  Kel.  230  PI. 
183;  Rex  v.  Griffin,  Rep.  temp.  Hardwicke,  39;  Rex  v.  Home,  Cowper,  672;  Holt 
on  Libel,  249;  Cooke  on  Defamation,  215.  Where  the  defamatory  matter  is  concern- 
ing a  class,  as  an  unincorporated  fire  company,  the  members  of  the  class  cannot  main- 
tain a  joint  action.  (Giraud  v.  Beach,  3  E.  D.  Smith,  337.)  A  man  may  be  libeled, 
not  by  name,  or  any  specific  description  of  himself,  but  under  some  such  description 
of  persons  as  includes  him  with  others — as  all  the  brewers  in  a  designated  portion  of 
a  city.  (Ryckman  v.  Delavan,  25  Wend.  186;  rev'g  White  v.  Delavan,  17  Wend.  49; 
and  see  Le  Faun  v.  Malcolmson,  1  Ho.  of  Lords  Cas.  637.)  And  "a  scandal  pub- 
lished of  three  or  four  or  any  one  or  two  of  them  is  punishable  at  the  complaiut  of 
one  or  more  or  all  of  them."  (Holt  on  Libel,  247 ;  Harrison  v.  Bevington,  8  C.  &  P. 
807.)  Thus  where  there  was  an  indictment  against  sixteen  persons  for  conspiracy, 
and  I.  S.  said  the  defendants  were  those  who  helped  to  murder  W.  N.,  held,  either  of 
the  sixteen  defendants  might  have  his  action  (Vin.  Abr.,  Act.  for  Words,  C.  b.  5  ;  and 
see  Forbes  v.  Johnson,  11  B.  Mom*.  48;  Chandler  v.  Holloway,  4  Port.  17;  and  see 
Parties,  post.)  And  where  the  charge  was  against  the  deputy  -lieutenants  engaged  in 
suppressing  a  riot,  held  one  of  such  lieutenants  might  sue.  (Morthland  v.  Cadell,  4 
Paton,  385;  Boyd  Kinnears  Dig.  of  H.  C.  Cas.  227.)  But  where  the  allegation  was 
that  a  number  of  articles  had  been  put  into  the  market,  and  fraudulently  sold  as  an- 
tiquities, held  that  a  dealer  in  antiquities  could  not  maintain  an  action.  (Eastwood  v. 
Holmes,  1  Fos.  &  F.  347.)  Where  the  intention  to  apply  defamatory  remarks  to  the 
prosecutor  is  rendered  doubtful  and  ambiguous  by  the  defendant  having  left  blanks 
for  names,  or  from  his  having  given  merely  the  initials  or  introduced  fictitious  names, 
it  is  always  a  question  for  the  opinion  and  judgment  of  the  jury  whether  the  prosecu- 
tor was  the  party  really  aimed  at.  (2  Starkie  on  .Slander,  32;  The  State  v.  Jeandell, 
32  Penn.  State  Rep.  475  ;  Mix  v.  Woodward,  12  Conn.  262  ;  Ryckman  v.  Delavan,  25 
Wend.  186.)    For  this   purpose  the  judgment  and  opinion  of  witnesses  who,  from 


166  CONSTRUCTION    OF    LANGUAGE.  [Ch.  VLL 

view  to  determine  its  proper  meaning.1  For  the  purpose 
of  its  construction,  language  is  to  be  regarded  not  merely 
in  reference  to  the  words  employed,  but  according  to  the 
sense  or  meaning  which,  all  the  circumstances  of  its  pub- 
lication considered,  the  language  may  be  fairly  presumed 
to  have  conveyed  to  those  to  whom  it  was  published. 
The  language  is  always  to  be  regarded  with  reference  to 
what  has  been  its  effect,  actual  or  presumed,  and  the  sense 
is  to  be  arrived  at  with  the  help  of  the  cause  and  occasion 
of  its   publication.2     The   court   or  the  jury  is  to  place 


their  knowledge  of  the  parties  and  the  circumstances,  are  liable  to  form  a  conclusion 
as  to  the  defendant's  intention  and  application  of  the  libel,  is  evidence  for  the  infor- 
mation of  the  jury ;  (2  Starkie  on  Slander,  321),  and  he  adds  in  a  note  ;  Lord  Ellen- 
borough  held  that  the  declarations  of  spectators  while  they  looked  at  a  libelous 
picture,  publicly  exhibited  in  an  exhibition-room,  was  evidence  to  show  that  the 
figures  portrayed  were  meant  to  represent  the  parties  alleged  to  have  been  libeled. 
(Du  Bost  v.  Beresford,  2  Camp.  512);  and  see  Starkie  on  Evidence,  part  iv.,  p.  861. 
In  New  York  a  witness  is  not  allowed  to  state  his  conclusion  from  the  facts  as  to  the 
intention  of  the  defendant  to  apply  the  words  or  libel  to  the  party  or  circumstances 
as  alleged.  (Van  Vechten  v.  Hopkins,  5  Johns.  211;  Gibson  v.  Williams,  4  "Wend. 
320.)  In  some  other  States  witnesses  have  been  allowed  to  testify  as  to  the  sense  in 
which  they  understood  the  words,  and  the  application  of  the  words  to  the  plaintiff. 
(Morgan  v.  Livingston,  2  Rich.  573;  Miller  v.  Butler,  6  Cush.  71  ;  Leonard  v.  Allen, 
11  Cush.  241 ;  McLaughlin  v.  Russell,  17  Ohio,  475  ;  Goodrich  v.  Davis,  11  Met.  473; 
Goodrich  v.  Stone,  11  Met.  486;  Allensworth  v.  Coleman,  5  Dana,  315;  White  v. 
Sayward,  33  Maine,  322;  Mix  v.  Woodward,  12  Conn.  262;  Smarts.  Blanchard,  42 
N.  H.  137;  Smaley  v.  Stark,  9  Ind.  386;  Tompkins  v.  Wisener,  1  Sneed,  458;  Com- 
monwealth v.  Buckingham,  Thacher's  Crim.  Cas.  29.)  But  the  rule  adopted  in  New 
York  appears  to  have  been  followed  in  Snell  v.  Snow,  13  Met.  278;  Rangier  v.  IIuui- 
mell,  37  Penn.  St.  Rep.  130;  Briggs  v.  Byrd,  11  Ired.  353. 

'In  Edsall  v.  Brooks,  3  Robertson,  295,  it  is  said:  "Although  greater  liberality 
seems  to  be  exercised  in  the  case  of  words  when  they  are  spoken,  than  when  they 
are  contained  in  written  or  printed  articles,  yet  in  both  cases  it  must  be  one  of  intent, 
of  course  a  person  must  be  presumed  to  have  used  words  in  their  ordinary  import 
among  those  who  speak  the  language  to  which  such  words  belong,  in  the  community 
in  which  they  are  uttered  or  published,  but  if  they  have  acquired  by  local  usage  a 
different  meaning,  it  must  be  presumed  that  they  were  used  to  convey  the  ideas 
attached  to  them  by  such  usage,  and  such  meaning  may  be  alleged  as  a  fact  in  the 
pleadings,  and  the  evidence  upon  it  may  be  passed  upon  by  the  jury.  The  meaning 
of  all  words  in  the  English  language  is  not  everywhere  the  same,  and  the  only  cri- 
terion of  the  meaning  of  them,  as  used  on  any  occasion,  is  the  understood  meaning 
in  the  community,  society  or  individuals  to  whom  they  were  addressed ;  it  is  only 
when  iinderstood  in  that  sense  they  do  the  party  at  whom  they  are  aimed  any 
injury." 

2  In  actions  for  words  we  are  to  consider  the  words  themselves  and  the  causa  dicendi, 


§  133.]  CONSTRUCTION    OF   LANGUAGE.  167 

itself  in  the  situation  of  the  hearer  or  reader,  and  deter- 
mine the  sense  or  meaning  of  the  language  in  question 
according  to  its  natural  and  popular  construction.1 

It  is  said  that  words  to  confer  a  cause  of  action  for 
slander  or  libel  ought  to  be  in  the  affirmative,2  and  that 
actions  for  slander  do  not  lie  upon  inferences,3  but  negative 


for  sometimes  in  the  first  case  1;hey  will  bear  an  action,  and  yet  when  the  causa 
dicendi  is  considered  they  will  not.  (Barclay,  J.,  Mar.  20,  p.  45.)  "  In  case  of  slan- 
der by  words,  the  sense  of  the  words  ought  to  be  taken,  and  the  sense  of  them 
-appears  by  the  cause  and  occasion  of  speaking  them ;  for  sensus  verborum  ex  causa 
dicendi  accipiendus  est."  (4  Co.  18.)  The  construction  which  it  behooves  a  court  of 
justice  to  put  on  a  publication  which  is  alleged  to  be  libelous,  is  to  be  derived  as  well 
from  the  expressions  used,  as  from  the  whole  scope  and  apparent  object  of  the  writer. 
(Van  Buren,  Senator,  Spencer  v.  Southwick,  11  Johns.  592.) 

1  "  Words  are  now  construed  by  courts  as  they  always  ought  to  have  been,  in  the 
plain  and  popular  sense  in  which  the  rest  of  the  world  naturally  understand  them." 
(Roberts  v.  Camden,  9  East,  93.)  "  It  is  quite  clear,  from  all  the  modern  authorities, 
that  a  court  must  read  these  words  in  the  sense  in  which  ordinary  persons,  or  in 
which  we  ourselves,  out  of  court,  reading  this  paragraph,  would  understand  them." 
(Tenterden,  C.  J.,  Harvey  v.  French,  1  Cr.  &  M.  11.)  We  cannot  pervert  the  words 
and  alter  the  ordinary  construction  of  them.  (Bonyon  v.  Trotter,  Sty.  231.)  The 
words  must  be  understood  by  the  court  in  the  same  sense  in  which  the  rest  of  man- 
kind would  ordinarily  understand  them.  (Woolnoth  v.  Meadows,  5  East,  463;  Spen- 
cer v.  Southwick,  11  Johns.  579.)  We  "  ought  to  expound  words  according  to  their 
general  signification."  (Pratt,  C.  J.,  Button  v.  Heyward,  8  Mod.  24),  or  acceptation 
(Fallenstein  v.  Boothe,  13  Mis.  427;  Ogden  v.  Riley,  2  Green,  186);  their  popular 
sense  (Duncan  v.  Brown,  15  B.  Monr.  186;  Hancock  v.  Stephens,  11  Humph.  507) 
their  most  obvious  meaning  (Hogg  v.  Wilson,  IK  it  M.  216),  or  common  import 
(Thirman  v.  Mathews,  1  Stew.  384;  Hogg  v.  Dorrah,  2  Port.  212),  as  understood  by 
the  hearer  (Dorland  v.  Patterson,  23  Wend.  422 ;  Butterfield  v.  Buffum,  9  N.  Hamp. 
156;  McGowan  v.  Manifee,  7  Monr.  314);  and  according  to  the  ideas  they  are  cal- 
culated to  convey  (Demarest  v.  Haring,  6  Cow.  76;  Truman  v.  Taylor,  4  Iowa,  424) ; 
according  to  their  natural  meaning  and  common  acceptation  (Wright  v.  Paige,  36 
Barb.  438;  s.  c,  on  appeal,  3  Trans.  App.  134.)  The  jury  are  to  be  guided  in 
forming  their  opinion  [on  the  meaning  of  the  alleged  defamatory  matter]  by  the  im- 
pression which  the  words  or  signs  used  were  calculated  to  make  on  the  minds  of 
those  who  heard  or  saw  them,  as  collected  from  the  whole  of  the  circumstances.  (1 
Starkie  on  Slander,  60.)  Words  are  to  be  taken  in  that  sense  in  which  they  are  gen- 
erally understood,  and  when  that  puts  upon  them  a  guilty  sense  they  are  actionable. 
(Pike  v.  Van  Wormer,  6  How.  Pr.  R.  99  ;  Dias  v.  Short,  16  id.  322 ;  Walrath  v.  Nellis, 
17  id.  72  ;  Ilughley  v.  Hughley,  2  Bailey,  592 ;  Tuttle  v.  Bishop,  30  Conn.  80.)  The 
words  are  to  be  taken  in  their  natural  meaning  and  according  to  common  acceptation 
(Carroll  v.  White,  33  Barb.  618),  and  the  vulgar  intendment  of  the  bystanders. 
(Somers  v.  House,  Holt,  39.) 
2  Weblin  v.  Meyer,  Yelv.  153. 
*  Jenk.  302  PI.  72.     To  sustain  an  action  plaintiff  must  show  (1)  that  the  words 


168  CONSTRUCTION   OF   LANGUAGE.  [Cll.  VII. 

or  ironical  language  may  be  shown  to  be  in  fact  affirmative, 
and  if  so  found,  has  the  like  effect  as  affirmative  words.1 
"  The  law  cannot  be  evaded  by  any  of  the  artful  and  dis- 
guised modes  in  which  men  attempt  to  conceal  libellous 
or  slanderous  meanings ;  " 2  and  the  fact  of  language  being 

used  either  "  of  themselves  or  by  reference  to  circumstances,  are  capable  of  the 
offensive  meaning  attributed  to  them  ;  (2)  that  the  defendant  did,  in  fact,  use  them  in 
that  sense."  (1  Starkie  on  Slander,  44.)  "  Words  imputing  crime  must  be  precise." 
(Id.)    See  note  to  §  142,  post. 

1  "Words  calculated  to  induce  the  hearers  to  suspect  that  the  plaintiff  was  guilty 
of  the  crime  alleged,  are  actionable.  (Drummond  v.  Leslie,  5  Blackf.  453.)  It  is  not 
necessary  that  the  words  iu  terms  should  charge  a  crime.  If  such  is  the  necessary 
inference,  taking  the  words  altogether,  and  in  their  popular  meaning,  they  are 
actionable.  (Morgan  v.  Livingston,  2  Rich.  573  ;  Cass  v.  Anderson,  33  Verm.  182  ; 
Colman  v.  Godwin,  3  Doug.  90 ;  2  B.  &  C.  285  ;  Commonwealth  v.  Runnels,  10  Mass. 
518.)  "  A  libel  in  hieroglyphics  is  as  much  a  libel  as  an  open  invective.  Not  only 
an  allegory  but  a  rebus  or  an  anagram  may  be  a  libel."  (Holt  on  Libel,  245.)  The 
man  that  is  painted  with  a  fool's  cap  or  coat,  or  with  horns,  or  whose  picture  is 
drawn  with  asses'  ears,  is  certainly  abused.  (1  Wood's  Inst.  445;  Holt  on  Libel, 
244 ;  Du  Bost  v.  Beresford,  2  Camp.  512 ;  Mezzara's  Case,  2  City  Hall  Recorder, 
113.) 

"  I  know  what  I  am,  and  I  know  what  Snell  is ;  I  never  buggered  a  mare."  These 
words  held  to  import  a  charge  of  buggery  against  Snell.  (Snell  v.  Webbling,  2  Lev. 
150.)  But  the  words,  "I  never  came  home  and  poxed  my  wife,"  held  not  capable 
of  being  construed  as  a  charge  that  the  party  to  whom  the  words  were  addressed 
had  gone  home  and  poxed  his  wife.  (Clerk  v.  Dyer,  8  Mod.  290.)  And  so  the  words, 
"  A  man  that  would  do  that  would  steal,"  held  not  to  amount  to  a  charge  of  stealing. 
(Stees  v.  Kemble,  27  Penns.  112.) 

The  defendant  wrote  a  pamphlet  called  "  Advice  to  the  Lord  Keeper,  by  a  Country 
Parson,"  wherein  he  would  have  him  love  the  church  as  well  as  the  Bishop  of  Salis- 
bury, manage  as  well  as  Lord  Havesham,  be  brave  as  another  Lord,  dire.  The 
defendant  was  found  guilty,  and  upon  motion  in  arrest  of  judgment,  it  was  urged  that 
no  ill  thing  was  said  of  any  person,  and  all  he  said  was  good  of  them ;  but  by  the 
court;  the  words  were  laid  to  be  ironical,  and  the  jury  have  found  them  to  be  so, 
and  the  motion  was  refused.  (Reg.  v.  Browne,  Holt,  435;  11  Mod.  86,  recognized, 
Andrews  v.  Woodmarisee,  15  Wend.  232  ;  Boydell  v.  Jones,  4  M.  A  W.,  446;  7  Dowl. 
Pr.  Cas.  210.)  So  where  the  words  were,  "  You  are  no  thief."  (4  Rep.  19 ;  Cro.  Jac. 
65;  2  Bulst.  138;  L'd  Raym.  236.)  You  will  not  play  the  Jew  nor  the  hypocrite. 
(Rex  v.  Brown,  Popham,  139  ;  Hob.  215.)  "An  honest  lawyer."  (Boydell  v.  Jones, 
4  M.  &  W.  446;  7  Dowl.,  P.  C.  210.)  They  being  alleged  to  have  been  spoken 
ironically,  and  so  found  by  the  jury,  held  to  be  actionable. 

9  Shaw,  Ch.  J.,  Commonwealth  v.  Child,  13  Pick.  198.  The  court  will  regard  the 
use  of  fictitious  names  and  disguises  in  a  libel  in  the  sense  that  they  are  commonly 
understood.  (The  State  v.  Chace,  Walk.  384.)  "  If,  therefore,  obscure  and  ambigu- 
ous language  is  used,  or  language  which  is  figurative  or  ironical,  courts  and  juries 
will  understand  it  according  to  its  true  meaning  and  import;  and  the  sense  in  which 
it  was  intended,  is  to   be   gathered  from  the   context   and   from  all  the  facts  and 


§    133.]  CONSTRUCTION    OF   LANGUAGE.  169 

ungrammatical,  or  such  as  is  not  usually  found  in  any 
dictionary,1  will  not  suffice  to  prevent  the  law  taking 
cognizance  of  such  language,  or  of  the  meaning  it  properly 
conveys.2 

circumstances  under  which  it  was  U3ed."  (Shaw,  Ch.  J.,  Commonwealth  v.  Kneeland, 
20  Pick.  206;  and  see  Vanderlip  v.  Rose,  23  Penn.  State  Rep.  (11  Harris),  82.) 
"  One  half  of  the  English  language  is  interpreted  by  the  context."  Alderson,  B. 
Dellevene  v.  Percer,  9  Dowl.  P.  C.  245. 

A  defamatory  writing  expressing  only  one  or  two  letters  of  a  name,  in  such  a 
manner  that  from  what  goes  before  and  follows  after  it,  must  necessarily  be  under- 
stood to  signify  a  certain  persoD  in  the  plain,  obvious,  and  natural  construction  of  the 
whole,  is  to  be  understood  as  if  the  name  were  written  in  full.  (Reg.  v.  Hurt,  Hawk. 
PI.  Cr.  194;  Rex  v.  Woodfall,  Lofft,  776;  Roach  v.  Read,  2  Atk.  469  ;  Holt  on  Libel, 
243.)  If  in  a  libel  asterisks  be  put  instead  of  the  name  of  the  party  libeled,  it  is 
sufficient  that  the  plaintiff  should  be  so  designated  that  those  who  know  him  may 
understand  that  he  is  the  party  meant.  It  is  not  necessary  that  all  the  world  should 
understand  that  the  plaintiff  is  the  party  intended.  (Bourke  v.  Warren,  2  C.  &  P- 
307) ;  and  see  in  note  2  infra,  and  note  page  163,  ante. 

1  One  "  cannot  protect  himself  from  an  action  by  the  mere  grammatical  structure 
of  the  phrase."  (Cowen,  J.,  Cornelius  v.  Van  Slyck,  21  Wend.  70.)  "The  etymology 
of  words,  or  the  grammatical  construction  of  sentences,  will  be  fallacious  if  followed 
as  the  only  guides  in  the  interpretation  of  language."  (Borthwick  on  Libel,  142.) 
"Here  is  three  cockeh  in  this  place  we  now  them  well,  he  is  a  nave,  he  cheats  and 
rongs  the  country,  and  is  the  cur  of  a  son  of  a  whore."  The  indictment  for  these 
words  was  demurred  to  because  the  words  were  not  intelligible,  but  the  court  over- 
ruled the  demurrer,  and  said  "  it  would  be  hard  that  a  court  of  justice  must  not 
understand  what  is  spelt  badly,  when  all  the  world  besides  makes  no  scruple  to  find 
the  signification  of  the  words."  (Rex  v.  Edgar,  2  Sess.  Cas.  29,  PL  33.)  "  Common 
sense  is  not  to  be  deemed  a  stranger  to  legal  process,  but  as  very  influential  in 
ascertaining  the  force  and  effect  of  words  and  sentences  which,  although  technical, 
are  to  receive  a  sensible  construction."  (Parker,  Ch.  J.,  Commonwealth  v.  Runnels, 
10  Mass.  518.) 

2  Courts  take  judicial  notice  of  the  meaning  of  words  and  idioms  in  the  ver- 
nacular language.  (1  Greenl.  Ev.  §  5,  citing  6  Vin.  Ab.  491,  PI.  6,  7,  8 ;  Tit.  Court 
C. ;  Hoyle  v.  Cornwallis,  1  Stra.  387 ;  Page  v.  Faucet,  Cro.  El.  227  ;  Harvey  v.  Brand. 
2  Salk.  626  ;  and  see  note  1,  p.  1*71,  post.)  An  J  no  colloquium  or  innuendo  is  necessary 
to  point  their  meaning.  (Elam  v.  Badger,  23  111.  49S  ;  Forbes  v.  King,  1  Dowl.  P. 
C.  072;  Hoare  v.  Silverlock,  12  Adol.  &  Ell.,  N.  S.  624;  Homer  v.  Taunton,  5  HurL 
&  Nor.  661 ;  Fuck  is  an  English  word  and  no  innuendo  is  necessary  to  point  it3 
meaning  (Edgar  v.  McCutchen,  9  Missouri,  768.)  In  Hoare  v.  Silverlock  (12  Ad.  & 
El.,  N.  S.  621),  the  court  took  judical  notice,  without  an  innuendo,  of  the  reproachful 
meaning  of  the  term  "frozen  snake,"  and  so  in  Ashley  v.  Billington  (Carth.  231),  of 
the  term  "Jezebel,"  and  so  of  the  terms  "Empirick"  and  '•Mountebank."  (Vin. 
Abr.,  Act.  for  Words,  S.  a.  12.)  In  King  y.  Lake  (2  Ventr.  18),  the  court  said  they 
could  not  take  notice  of  "  milk  your  purse,"  because  it  had  not  become  an  idiom. 
See  as  to  "Man  Friday,"  "Gambling  Fracas."  (Forbes  v.  King,  1  Dowl.  672.) 
Shooting  out  of  a  leather  gun.  (Ilarman  v.  Delany,  2  Stra.  893.)  "Bogus  pedlar" 
was  said  not  to  have  acquired  a  meaning  sufficiently  definite  to  allow  the  court  to 

12 


170  CONSTRUCTION    OF   LANGUAGE.  [Ch.  VII. 

§  134.  Whenever  language  charged  to  be  defamatory 
has  any  reference  to  or  is  connected  with  any  other 
language  or  event,  which  affects  its  meaning  or  effect,  it 
must  be  construed  in  relation  to  such  other  lano-uao-e  or 
event ;  and  this,  although  on  the  face  of  the  alleged  de- 
famatory matter  there  is  no  reference  to  any  other  language 
or  event.1  In  the  absence,  however,  of  any  allegation  or 
proof  to  the  contrary,  matter  which  has  on  its  face  no  ref- 
erence to  any  other  language  or  event,  will  not  be  pre- 
sumed to  have  any  such  reference,  and  must  be  construed 
as  standing;  alone.2 


take  judicial  notice  of  its  import.  (Pike  v.  Van  Wormer,  6  How.  Pr.  R.  101;  5  id. 
115.)  The  law  does  not  take  notice  of  what  a  "cozener"  is  (Walcot  v.  Hind,  Hutt, 
14);  or  the  meaning  of  "tan  money."  (Day  v.  Robinson,  1  Ad.  &  El.  554.)  Wool- 
comber  held  not  to  need  an  innuendo  to  show  it  means  one  who  buys  wool  to  work 
with.  (Anon.  Lofft,  322.)  Truckmaster,  a  word  said  not  to  be  found  in  any 
dictionary,  was  used  without  an  innuendo ;  it  was  left  to  jury  to  decide  if  used  in 
libelous  sense.  (Homer  v.  Taunton,  5  Hurl.  &  Xor.  661.)  Doubted  if  the  term 
"  swindler"  was  one  of  which  the  court  would  take  judicial  notice  (1' Anson  v.  Stewart, 
1  T.  R.  748) ;  but  see  Forrest  v.  Hanson,  1  Cr.  C.  C.  63.  The  Court  refused  to  take 
notice  that  "hooked"  is  sometimes  used  to  mean  "stole"  (Hays  v.  Mitchell,  7  Blackf. 
117);  or  "  goose -house"  to  mean  "brothel."     (Dyer  *■.  Morris,  4  Mis.  214.) 

The  court  is  to  inform  itself  of  the  meaning  of  English  words,  although  unusual 
and  peculiar  to  a  particular  place  (Parke,  B.,  McGregor  v.  Gregory,  2  Dowl.,  X.  S. 
769;  11  M.  AW.  287;  Com.  Dig.,  Act,  for  Defam.  C).  as  healer  of  felons  (Rolle 
Abr.  86);  or  Welsh  words  (Hobart,  126),  Da ffa-down-dilly,  by  averment  meaning 
arnbo  dexter  (Pearce's  Case,  Cro.  Car.  382);  and  where  particular  English  words  have 
acquired  some  sense  different  from  their  natural  one,  an  averment  by  way  of  induce- 
ment of  that  acquired  sense  is  necessary ;  an  innuendo  without  such  an  averment 
would  be  insufficient  (McGregor  y.  Gregory,  2  Dowl.  X.  S.  769);  so  held  of  the  terms 
black  sheep  and  black  legs  (id.) ;  and  see  notes  1.  pages  171  and  17">.  post. 

1  Tighe  v.  Cooper,  7  Ell.  it  Bl.  639.  The  defendant  has  always  been  permitted, 
by  way  of  defence,  to  show  the  matter  affecting  the  meaning  of  the  alleged  defamatory 
matter,  as  in  an  action  for  calling  plaintiff  a  murderer,  it  may  be  urged  that  the  words 
■were  used  in  the  course  of  a  conversation  about  unlawful  hunting  and  merely 
imported  that  plaintiff  was  a  murderer  of  hares  14  Co.  14 1,  so  where  the  charge  was 
ma  ntenance  defendant  might  show  that  lawful  maintenance  was  intended  (Cro.  Jac. 
90;  Kinnersly  v.  Cooper,  Cro.  Eliz.  168;  and  see  Britti"  .  4  Co.  18.)  And 
•where  defendant  charged  plaintiff  with  the  commission  of  an  offence,  but  alleged 
that  plaintiff  was  insane  at  the  time:  Held,  that  although  otherwise  actionable  yet 
as  insanity  would  be  an  excuse  for  the  offence  the  charge  was  not  actionable 
(Abrams  v.  Smith,  8  Blackf.  95.) 

2  Explanatory  circumstances  known  to  both  parties,  speaker  and  hearer,  are  to  be 
taken  into  the  account  as  part  of  the  words.  (Dorland  v.  Patterson,  23  Wend.  422, 
citing  Andrews  v.  Woodmansee,  15    id.  232;  Miller  v.  Maxwell,  16  id.  9;  Ileming  v. 


§  134.]  CONSTRUCTION    OF    LANGUAGE.  171 

It  is  impossible  to  anticipate  or  catalogue  all  the  cir- 
cumstances which  may  affect  the  meaning  of  language,  but 
among  them  are  the  circumstances  of  tune,  place,  and 
usage,1  and  some  others  to  be  presently  mentioned. 

Power,  10  M.  &  W.  569 ;  and  see  Hankinson  v.  Bilby,  2  Car.  and  Kir.  440;  16  M.  <fc 
W.  446;  Perry  v.  Mann,  1  Rhode  I.  263.)  Words  otherwise  actionable  explained  at 
the  time  of  publication  by  referring  to  a  known  and  particular  transaction  are  to  be 
construed  ace  irdingly.  (Dole  v.  Rensselaer,  3  Johns.  Cas.  458;  Aldrich  v.  Brown,  11 
Wend.  596;  Trabue  v.  Mays,  3  Dana,  138;  Emery  r.  Miller,  1  Denio,  208;  Thomp- 
son v.  Bernard,  1  Camp.  4S ;  Shecut  v.  McDowel,  Const.  Rep.  35 ;  Christie  v.  Cowell, 
Peake,  4  ;  Pegram  v.  Styron,  1  Bailey,  595.)  Words  which  do  not  necessarily  import 
anything  injurious,  may  do  so  when  taken  in  connection  with  other  charges  (Beards- 
ley  v.  Tappaa,  1  Blatch.  C't.  Co't  Rep.  588),  or  according  to  the  common  understand- 
ing of  them.  (Cooper  v.  Perry,  Dudley,  247.)  The  defendant  may  show  the  lan- 
guage related  to  some  transaction  (Ceeley  ;■.  Hoskins,  Cro.  Car.  509  ;  Norton  v.  Ladd, 
5  N.  H.  203),  or  was  uttered  in  connection  with  other  words,  which  controlled  its 
meaning.  (Stevens  v.  Handley,  Wright,  123;  Williams  v.  Cowley,  18  Ala.  206; 
Hays  v.  Mitchell,  7  Blackf.  117;  Harrison  v.  Findlay,  23  Ind.  265;  Robinson  v. 
Keyser,  2  Foster  (N  H.),  323. 

Where  the  language  is  prima  facie  actionable,  the  burden  is  on  the  defendant  to 
show  that  they  are  not  actionable.  (2  Starkie  on  Slander,  85  ;  Penfold  v.  Westcote, 
2  N.  R.  335;  Christie  v.  Cowell,  Peake's  Cas.  4;  Sel.  N.  P.  1250;  Bissel  v.  Cornell, 
24  Wend.  354  ;  Watson  v.  Nicholas,  6  Hump.  174.) 

1  "Libel  *  *  *  has  been  variously  construed  at  various  times ;  being  a  mere 
legal  reason,  and  therefore  variable  not  only  according  to  all  the  circumstances  of  the 
times,  but  according  to  the  ability  and  information  of  the  judges.  In  ignorant  and 
despotic  times  it  had  not  the  same  limits  and  precision  as  in  the  days  of  liberty  and 
science."  (Holt  on  Libel,  43.)  "In  judging  of  the  meaning  of  language,  our  juries 
have  been  directed  to  attend  to  the  criteria  of  the  time,  the  place,  when  and  where, 
and  the  person  by  and  to  whom  the  language  has  been  employed."  (Borthwick  on 
Libel,  142.) 

"Precedents  in  actions  for  words  are  not  of  equal  authority  as  in  other  actions; 
norma  Joquendi  is  the  rule  for  the  interpretation  of  words,  and  this  rule  is  different  in 
one  age  from  what  it  is  iu  another.  The  words  which  an  hundred  years  ago  did  not 
import  a  slanderous  sense,  may  now,  and  vice  versa"  (Harrison  v.  Thornborough,  10 
Mod.  196;  cited  Beardsley  v.  Dibblee,  1  Kerr,  246.)  And  it  is  the  duty  of  courts  to 
take  notice  of  the  mutations  in  language.  (Vanada's  Heirs  v.  Hopkins,  1  Marshall 
Ken.  R.  287.)  "The  precedents  in  Croke's  reports  are  beginning  to  be  considered 
apocryphal."  (Gibson,  J.,  Bash  v.  Sommer,  20  Penn.  St.  R.  159.)  "Many  of  those 
cases  [in  Cro.  Jac.  and  Cro.  Car.]  could  not  be  supported  at  the  present  day.  I  do 
not  mean  to  cast  any  doubt  upon  the  cases  quoted  from  Bacon's  Abridgement  and 
Comyn'a  Digest."  (Pollock,  C.  B.,  Tozer  v.  Mashford,  6  Ex.  539;  and  see  Beardsley 
v.  Dibblee,  1  Kerr,  260;  Foster  v.  Small,  :;  Wliart.  143;  Bh.ss  v.  Tobey,  2  Pick.  320.) 
Bridgeman,  Ch.  J.,  said  he  was  not  s  itisfied  to  go  by  precedents,  because  he  held  that 
to  be  scandalous  now  which  was  not  twenty  years  ago.  That  it  is  use  makes  words 
have  force,  and  words  that  are  actionable  now,  hereafter  may  not  he  so.  (Carth.  55.) 
"  The  opinions  of  later  times  have  been  in  many  instances  different  from  those  in 
former  days  in  relation  to  words."    (Holt,  Ch.  J.,  Baker  v.  Pierce,  6  Mod.  23.) 


172  CONSTRUCTION   OF   LANGUAGE.  [CL    VH 

§  135.  In  allowing  extraneous  circumstances  to  affect 
the  construction  of  language,  courts  inquire  whether  or 
not  the  hearer  or  reader  of  the  language  knew  such  cir- 
cumstances. If  the  hearer  or  reader  was  acquainted  with 
those  extraneous  circumstances,  the  construction  will  be 
with  reference  to  them,  not  because  it  is  important  how 
the  hearer  or  reader  understood  the  language,  but  because 
those  circumstances  form  a  proper  element  in  determining 
the  meaning  to  be  attributed  to  the  language  in  question. 
If  the  hearer  or  reader  was  not  acquainted  with  those 
extraneous  circumstances,  then  they  will  not  be  taken 
into  consideration  in  deternmiino;  the  meaning  of  the  Ian- 
guage.  The  hearer  or  reader  not  being  acquainted  with 
those  circumstances  which  affect  the  meaning  of  the  lan- 
guage, its  effect  upon  such  hearer  or  reader  is  as  if  no  such 
circumstances  existed,  and  the  lans-uao-e  is  to  be  construed 
without  reference  to  such  circumstances.  The  circum- 
stance that  the  act  charged  is  physically  or  legally  impos- 
sible, does  not  always  prevent  the  language  being 
actionable.  The  alleged  test  in  such  a  case  is  the  knowl- 
edge possessed  by  those  to  whom  the  language  is  pub- 

In  the  time  of  Charles  the  Second  of  England,  it  was  held  actionable  to  call  one  a 
Papist  or  to  say  he  went  to  Mass  (Row  v.  Clargis,  L'd  Raym.  482 ;  2  Salk.  696;  Wal- 
den  v.Mitchell,  2  Vent.  265;  Cutler  v.  Friend,  2  Show.  140);  but  held  otherwise  in 
the  reign  of  King  James.  (Ireland  v.  Smith,  2  Brown,  166.)  So  in  England,  to  write 
of  one  that  he  was  a  "  Man  Friday"  was  held  not  actionable  (Forbes  v.  King,  1  Dowl. 
P.  C  672;  1  Cr.  &  M.  435;  2  Law  Jour.  Rep.  N.  S.  Ex.  109),  for  the  reason  as  stated 
in  Hoare  v.  Silverlock,  12  Adol.  &  El.  N.  S.  624,  that  being  a  black  man  might  be  a 
great  misfortune,  but  was  no  crime ;  while  in  the  United  States  it  has  been  held  action- 
able to  call  one  a  mulatto.  (King  v.  Wood,  1  N.  <fe  M  (So.  Car.)  1S4  ;  Eden  v.  Legare, 
1  Bay,  171 ;  Atkinson  v.  Hartley,  1  McCord,  203;  contra  Barrett  v.  Jarvis,  1  Hamm. 
83,  note;  see  Borthwick  on  Libel,  176;  Trench's  English  Past  and  Present;  Mills' 
Logic,  Bk.  iv.  ch.  v. — The  history  of  variations  in  the  meaning  of  terms.) 

The  word  "screwed,"  or  "strained,"  does  not  of  itself  import  sexual  intercourse, 
but  in  certain  localities  it  may  have  that  import.  (Coles  v.  Haviland,  Oo.  Eliz.  250; 
Miles  v.  Van  Horn,  17  Ind.  245;  Rodeburgh  v.  Hollingsworth,  6  Ind.  339;  Vin.  Abr. 
Act.  for  Words,  L.  b.  7.)  In  London,  England,  pimp  signifies  common  bawd.  (Dim- 
mock  v.  Fawset,  Cro.  Car.  393,  pi.  5.)  Healer  of  felons  means,  in  some  localities,  aider 
of  felons;  limir  means  thief ',  and  outputtcr  means  receiver  of  jclons  (Vin.  Abr.  Act. 
for  Words,  L.  b.  1,  6),  and  see  id.  4,  7,  as  to  the  word  champcrlor  and  the  phrase  cut 
him  out  of  doors  ;  and  see  note  2,  page  169,  ante. 


§    135.]  CONSTRUCTION    OF   LANGUAGE.  173 

lislied.  Tims  where  the  defendant  attributed  to  the 
plaintiff  sexual  intercourse  with  a  dog,  and  of  having 
given  birth  to  a  litter  of  pups  in  consequence  of  such 
intercourse,  it  was  held  not  to  be  a  defence — that  such  a 
result  was  impossible.  But  semUe  that  it  might  have 
been  a  defence  if  it  had  been  shown  that  the  defendant 
and  those  who  heard  the  words  knew  that  such  a  result 
was  impossible.1 

To  charge  A.  with  the  murder  of  B.,  although  B.  was 


1  Kennedy  v.  Gifford,  19  Wend.  296.  Courts  cannot  say  judicially  whether  it  he 
possible  for  a  woman  to  have  connection  with  a  dog,  or  to  have  pups  by  him,  but  as  it 
is  not  popularly  believed  to  be  impossible,  the  people  not  being  presumed  to  know 
Bcientific  facts,  the  injury  to  the  plaintiff  will  be  the  same  in  either  case,  and  the  action 
will  lie.     (Ausman  v.  Veal,  10  Ind.  355;  Cleaveland  v.  Detweiler,  IS  Iowa,  299.) 

In  Fenn  v.  DLxe,  Jo.  444,  pi.  5,  the  words  were  of  a  brewer  and  his  beer.  "  I  will 
give  my  mare  a  peck  of  malt,  and  lead  her  to  the  water  and  let  her  drink,  and  she 
shall  piss  as  good  beer  as  any  Tom  Fenn  (the  plaintiff )  brews."  One  reason  assigned 
for  holding  the  words  not  to  be  actionable,  was  that  the  words  were  impossible  to  be 
true  in  the  understanding  of  any  man. 

"  Thou  art  a  bastard-bearing  whore,  and  hadst  two  bastards."  It  was  objected  that 
these  words  spoken  of  a  married  woman  were  not  actionable,  because  a  married  woman 
cannot  have  a  bastard,  but  held  actionable  because  they  purported  that  she  was  not 
married  when  she  had  the  bastards.     (Stevens  v.  Ask,  Sty.  424.) 

These  words  concerning  a  churchwarden,  "Who  stole  the  bell  ropes,  you  scamp- 
ing rascal?"  Not  actionable,  because  the  property  of  the  bell  ropes  was  in  the  plain- 
tiff as  churchwarden,  and  as  he  could  not  steal  his  own  property,  the  words  imputed 
no  felony.  (Jackson  v.  Adams,  2  Bing.  N.  C.  402;  2  Scott,  599.)  "  If  a  man  says  to 
a  miller  who  keeps  a  corn  mill,  thou  hast  stolen  three  pecks  of  meal,  an  action  lies; 
for,  although  the  corn  was  delivered  to  him  to  grind,  nevertheless,  if  he  steal  it,  it  is 
felony,  being  taken  from  the  rest."  (1  Rolle's  Abr.  73,  s.  16,  cited  Nichols  v.  The 
People,  17  X.  Y.  117;  and  see  Hume  v.  Arrasmith,  1  Bibb,  165,  and  §  169,  post.) 

In  an  action  for  slander  the  words  were,  "You  are  a  thief;  you  robbed  Mr.  L.  of 
£30."  The  words  were  spoken  in  the  hearing  of  B.  and  of  several  strangers.  B.  knew 
that  the  words  did  not  mean  to  impute  felony,  but  meant  to  impute  that  the  plaintiff 
had  improperly  obtained  £30  from  Mr.  L.  to  compromise  an  action  for  a  distress: 
Held,  that  under  these  circumstances  the  question  to  be  left  to  the  jury  was  not  what 
the  defendant  meant  by  the  words  he  spoke,  but  what  reasonable  men,  hearing  the  words, 
would  understand  by  them.  Semble,  also,  that  if  all  the  persons  present  when  the  words 
were  spoken  had  known  that  the  words  did  not  impute  felony,  that  would  have  been 
an  answer  to  the  action.  (Ilankiuson  v.  Bilby,  2  Car.  &  Kir.  440;  16  M.  <fe  W.  442.) 
The  mere  fact  that  the  defendant  charged  the  plaintiff  with  theft,  in  regard  to  an  arti- 
cle of  property  which  had  been  either  loaned  or  sold  to  the  plaintiff,  but  which  sale 
or  loan  was  not  known  to  those  in  whose  presence  he  made  the  charge,  will  not  ba  a 
ground  of  showing  either  that  the  act  charged  was  impossible  or  that  the  charge  was 
not  seriously  made.     (Smith  v.  Miles,  15  Verm.  245.) 


174  construction  or  language.  [Ch.VII. 

alive  at  the  time,  would  be  actionable ;  but  semble  not  so 
if  those  to  whom  the  publication  was  made  knew  that  B. 
was  alive.1  So,  semble,  one  tenant  in  common  of  chattels 
cannot  be  guilty  of  larceny  of  the  chattels  held  in  com- 
mon; and  therefore  to  charge  one  of  several  tenants  in 
common  with  larceny  of  a  chattel  held  in  common, 
would  be  actionable,  unless  those  to  whom  the  publication 
was  made  knew  of  the  tenancy  in  common.2  For  "  if,  at 
the  time  the  words  are  uttered,  there  are  circumstances 
[known  to  the  hearers]  which  clearly  show  the  words  are 
not  used  in  the  sense  of  imputing  a  felony,  then  the 
charge  falls  to  the  ground  and  no  action  will  lie." 3 
"Words  uttered  must  be  construed  in  the  sense  which 
hearers  of  common  and  reasonable  understanding  would 
ascribe  to  them,  even  though  particular  individuals  better 
informed  on  the  matter  alluded  to  might  forni  a  different 
judgment  on  the  subject.'1 4 

§  136.  In  the  case  of  all  oral,  and  of  some  written 
publications,  it  may  be  possible  to  prove  whether  or  not 
the  hearer  or  reader  was  acquainted  with  such  extraneous 


1  So  held,  Sergart  v.  Carter,  1  Dev.  <fe  Bat.  8;  Snag  v.  Gee,  4  Coke,  16.  "You 
have  killed  A. ;  you  have  poisoned  him,"  are  slanderous  words,  though,  at  the  time 
they  were  spoken,  A.  was  living  in  a  distant  part  of  the  country.  (Eckhart  v.  Wilson, 
10  S.  &  R.  44;  and  see  Tenney  v.  Clement,  10  N.  H.  52;  Carter  v.  Andrews,  16  Pick. 
1 ;  Stone  v.  Clark,  21  Pick.  51 ;  Stallings  v.  Newman,  26  Ala.  300.)  Wilt  thou  murder 
my  sister  as  thou  didst  thy  wife,  actionable  although  the  wife  was  alive.  (Brown  v. 
Charlton,  Keb.  359,  pi.  52.)  Thy  father  says  thou  hast  murdered  thy  husband.  Judg- 
ment was  arrested  after  verdict  for  plaintiff  for  these  words,  because  it  was  not  alleged 
that  the  husband  was  dead  at  the  time  the  words  were  spoken.  (Boldroe  v.  Porter, 
Yelv.  20.)  Words  actionable  per  se  are  not  so  when  spoken  of  a  transaction  not 
amounting  to  the  crime  charged  if  known  to  the  hearers  to  be  so  spoken.  (Parmer  v. 
Anderson,  33  Ala.  78;  Hankinson  v.  Bilby,  2  Car.  &  K.  440  ;  Carmichael  v.  Schiel,  21 
Ind.  66;  Perry  v.  Man,  1  Rhode  Island,  263;  Kennedy  v.  Gifford,  19  Wend.  296; 
Williams  v.  Stott,  1  Cr.  &  M.  675;  3  Tyrw.  688;  Brite  v.  Gill,  2  Monr.  65;  and  see 
post,  note  to  §  160. 

2  Carter  v.  Andrews,  16  Pick.  1;  Stone  v.  Clarke,  21  Pick.  51;  and  see  note  1.  page 
173,  ante. 

3  Parke,  B.  Heming  v.  Power,  10  M.  &  W.  569. 

4  Hankinson  v.  Bilby,  16  M.  &  W.  445;  and  see  note  to  §  140,  post. 


§    137.]  CONSTRUCTION    OF   LANGUAGE. 

circumstances,  but  in  the  majority  of  cases  it  wou- 
impossible  to  make  such  proof.  Some  circumstances  are 
of  such  general  notoriety  that  every  person  is  presumed 
to  be  acquainted  with  them,  and  then  all  language  must 
be  construed  in  reference  to  them.1  With  circumstances 
of  less  general  notoriety  the  knowledge  of  the  hearer  or 
reader  is  in  every  case  a  question  of  proof,  and  the  burden 
of  making  such  proof  rests  upon  him  who  claims  that  the 
hearer  or  reader  possessed  such  knowledge. 

§  137.  The  construction  to  be  put  upon  any  language 
spoken  or  written  must  be  that  which  is  consistent  with 
the  whole  of  the  speech  or  writing.  Thus  the  language  of 
any  part  of  a  writing  is  to  be  construed  with  reference  to 
the  entire  writing,  and  the  language  of  any  part  of  an  oral 
discourse  is  to  be  construed  with  reference  to  the  entire 
discourse.  Hence  words  which,  standing  alone,  would  be 
actionable,  may  not  be  actionable  when  taken  in  connec- 
tion with  their  context.2 


1  "  It  is  the  duty  of  the  jury  to  construe  plain  words  and  clear  allusions  to  matters 
of  universal  notoriety,  according  to  their  obvious  meaning  and  as  everybody  else  who 
reads  must  understand  them.  But  the  defendant  may  give  evidence  to  show  they 
were  used  on  the  occasion  in  question  in  a  different  or  qualified  sense.  If  no  such  evi- 
dence is  given,  the  natural  interpretation  of  the  words  and  the  obvious  meaning  to 
every  man's  understanding  must  prevail.  (Lord  Mansfield,  Res  v.  Home,  2  Cowper, 
672.) 

"You  are  a  soldier;  I  saw  you  in  your  red  coat  doing  your  duty;  your  word  is 
not  to  be  taken."  These  words,  spoken  of  an  upholsterer,  held  actionable,  it  being 
known  to  be  a  common  practice  for  tradesmen  to  protect  themselves  from  arrest  by 
their  creditors  by  a  counterfeit  listing.     (Arne  v.  Johnson,  10  Mod.  111.) 

In  an  action  for  libel  for  writing  to  a  client  of  the  plaintiff,  a  barrister,  "  He  would 
give  her  ill  counsel  and  stir  up  a  suit;  he  would  milk  her  purse  and  fill  his  own  large 
pockets,"  per  Vaughan,  C.  J.,  "  Saying  he  will  milk  your  purse,  taken  annunciatively, 
signifies  no  more  than  milking  a  bull ;  the  phrase  is  not  come  to  an  idiom."  (King  v. 
Lake,  2  Ventr.  18.)  Mr.  Parry,  in  his  edition  of  Lord  Campbell's  Libel  Act,  says 
(p.  13)  it  is  doubtful  if  this  decision  could  now  be  supported,  and  we  agree  with  him. 
See  note  2,  page  169,  ante. 

2  The  sense  is  to  be  gathered  from  the  whole  of  the  words  or  writing.  (2  Starkie 
on  Slander,  85;  Cooke  v.  Hughes,  1  R.  &  M.  112;  Carter  v.  Andrews,  16  Pick.  1; 
Cook  v.  Tribune  Association,  5  BL  C.  C.  352.)  The  construction  which  it  behooves  a 
court  of  justice  to  put  on  a  publication  is  to  be  derived  as  well  from  the  expressions 
used  as  from  the  whole  scope  and  apparent  object  of  the  writer.     (Cooper  v.  Greely, 


176  CONSTRUCTION    OF   LANGUAGE.  [Cll.  VII. 

§  138.  Formerly  the  condition  in  life  of  the  person 
spoken  of  materially  affected  the  construction,  and  words 
concerning  "  great  men  of  the  realm  "  were  held  actionable, 
which  would  not  have  been  so  held  when  published  con- 
cerning private  persons.  Language  defaming  these  "  great 
men "  was  called  scandalum  magnatum.  In  the  United 
States  no  such  distinction  of  persons  is  known.1  How  far 
the  condition  in  life  of  the  parties  will  affect  the  damages 
will  hereafter  be  considered.     [§§  391,  417.] 

§  139.  The  sense  in  which  the  publisher .  meant  the 
language  cannot  be  material.  The  dicta  which  apparently 
sanction  such  a  rule  will,  on  a  comparison  with  their  con- 
text, be  found  in  reality  to  be,  not  what  did  the  defendant 
mean,  but  what  properly  may  he  be  taken  to  have  meant. 
How  might  the  language  be  understood  by  those  to  whom 
it  was  published.  It  cannot,  therefore,  be  correct  to  say 
that  the  lana;uao;e  is  to  be  construed  in  the  sense  in  which 
the  publisher  intended  it  to  be  understood.  "When  a 
party  has  made  a  charge  that  clearly  imputes  a  crime,  he 
cannot  afterwards  be  permitted  to  say,  I  did  not  intend 
what  my  words  legally  imply." 2 

1  Denio,  358;  citing  Spencer  v.  Southwick,  11  Johns.  592;  Fidler  v.  Delavan,  20 
Wend.  57.)  "  God  forbid  that  a  man's  words  should,  by  strict  and  grammatical  con- 
struction, be  taken  by  parcels,  against  the  manifest  intent  of  the  party  upon  considera- 
tion of  all  the  words  which  import  the  true  cause  and  occasion  which  manifest  the 
true  sense  of  them."     (4  Co.  18.) 

A  defendant  should  be  tried  by  all  that  he  has  published  in  the  same  pamphlet  or 
paper.  (Morehead  v.  Jones,  2  B.  Munroe,  210.)  Brittridge  brought  an  actiun  for 
the  words,  "Mr.  Brittridge  is  a  perjured  old  knave,  and  that  is  to  be  proved  by  a 
stake  parting  the  lands  of  Martin  and  Wright."  The  judgment  was  arrested,  on  the 
ground  that  the  latter  words  explained  the  former  as  not  meaning  judicial  perjury. 
(4  Co.  18;  Yelv.  10,  34;  Mo.  600.) 

1  For  information  as  to  scandalum  magnatum,  the  reader  is  referred  to  Starkie  on 
Slander  ;  Ilolt  on  Libel.  Sicundem  gradurn  dignitatis,  <fec,  was  the  rule  of  the  Roman 
law,  and  is  the  rule  in  Scotland  and  France.  (Borthwick  on  Libel,  176,  177  n.,  Inst. 
Lib.  IV,  tit.  4;  Code  Criminel,  tit,  111,  art.  1;  Black.  Com.  B'k  III,  c.  vii,  s.  5; 
Selwy's  N.  P.  1155;  Barrington  on  Penal  Statutes ;  3  Reeve's  Hist,  of  the  Common 
Law.)     See  note  to  §  182. 

2  Woodworth,  J.,  McKinly  v.  Rob,  20  Johns.  351.  Words  having  naturally  none 
of  their  own,  carry  that  signification  to  the  hearer  that  he  is  used  to  put  upon  them, 


§  140.]  CONSTRUCTION    OF   LANGUAGE.  177 

§  140.  Where  the  language  is  a/mbiguous,  in  that  case 
the  manner  in  which  it  was  or  might  be  understood  by 
those  to  whom  it  was  published  is  material,  and  will  con- 
trol in  determining  the  meaning ;  but  where  the  language 
is  unambiguous,  it  is  to  be  construed  in  its  ordinary- 
sense,  and  without  reference  to  how  those  to  whom  it 
was  published  understood  it,  or  what  was  intended  by 
the  publisher.1 

whatever  be  the  sense  of  him  that  uses  them.     (Locke,  Conduct  of  the  Understand- 
ing, §  35.) 

The  question  in  an  action  for  words  is  not  what  the  party  using  them  considered 
their  meaning  by  any  secret  reservation  in  his  own  mind,  but  what  he  meant  to  have 
understood  as  their  meaning  by  the  party  to  whom  he  uttered  them.  (Read  v.  Am- 
bridge,  6  C.  &  P.  308.) 

"  The  effect  of  the  words  used,  and  not  the  meaning  of  the  party  in  uttering  them,  is 
the  test  of  their  being  actionable  or  not."  That  is,  first  ascertain  the  meaning  of  the 
words  themselves,  and  then  give  them  the  effect  any  reasonable  bystander  would  affix 
to  them.  (Hankinson  v.Bilby,  16  M.  &  W.442.)  "  The  secret  intent  of  the  publisher  is 
immaterial."  (Id.)  The  injury  caused  by  slander  depends  on  the  effect  of  the  words 
on  the  hearers.     (Hawks  v.  Patton,  18  Geo.  52.) 

The  speaker  "is  accountable  for  the  import  of  the  words  as  they  will  naturally 
be  understood  by  the  hearer."  (Dorland  v.  Patterson,  23  Wend.  424 ;  citing  Harri- 
son v.  Thornborough,  10  Mod.  196;  Gidney  v.  Blake,  11  Johns.  54.)  "It  was  not 
enough  that  the  defendant  could  point  the  slander  in  his  own  mind,  so  long  as  it  ap- 
pears to  have  been  pointless  in  the  minds  of  the  hearers."  (IJ.)  It  is  the  sense  in 
which  the  hearers  understood  the  words  on  which  the  jury  are  to  pronounce.  (Dem- 
arest  v.  Haring,  6  Cow.  16;  Kennedy  v.  Gifford,  19  Wend.  296.)  "Language  shall 
be  construed  and  understood  in  the  sense  in  which  the  writer  or  speaker  intended  it." 
(Commonwealth  v.  Kneeland,  20  Pick.  206.)  If  the  words  impute  a  crime,  it  is  not 
necessary  to  allege  an  intention  to  charge  such  crime.  (Galloway  v.  Courtney,  10 
Rich.  Law,  414.) 

"  Nor  by  the  term  meaning  are  we  to  understand  what  the  defendant  intended 
to  express ;  for  he  may  have  designedly  written  that  which,  in  its  literal  sense,  should 
be  imperfect.  But  we  are  to  understand  the  meaning  which  he  intended  others  should 
believe  him  to  have — the  sense  in  which  he  designed  his  production  should  be  received 
by  others.     (George  on  Libel,  36.) 

1  A  man  is  to  some  extent  responsible  for  the  hearing  of  the  bystanders,  if  he  uses 
language  which  imputes  crime,  with  an  explanation;  if  the  bystanders  did  not  hear 
the  explanation,  he  is  liable  to  an  action.  (Maybee  v.  Fisk,  42  Barb.  336  ;  see,  how- 
ever, apparently  contra,  Shecut  v.  M'Dowell,  3  Brevard,  38.)  But  the  understanding 
of  the  bystanders  cannot  be  shown  to  make  words  actionable  per  se,  which,  as  alleged 
in  the  declaration,  are  not  actionable  per  se.  (Smith  v.  Gafford,  33  Ala.  168.)  Where 
the  charge  was  actionable  per  se,  and  unambiguous,  and  there  were  no  circumstances 
to  qualify  them,  it  was  held  error  to  charge  the  jury  that  unless  the  words  were 
understood  by  the  hearers  in  a  slanderous  sense  they  must  find  for  the  defendant. 
(Jarnigan  v.  Fleming,  43  Missi.  711.) 


178  CONSTRUCTION    OF   LANGUAGE.  [Ch.  VII. 

§  141.  The  construction  of  language  as  actionable  or 
not  actionable,  is  sometimes  determined  by  the  knowledge 
or  imputed  knowledge  of  the  person  spoken  of;  thus  the 
w<  >rds  "  that  thief  A.  hath  stolen  my  goods  and  delivered 
them  to  Bacon,"  held  not  to  give  any  right  of  action  to 
Bacon,  it  not  being  alleged  he  knew  the  goods  were  stolen.1 
So  of  the  words,  he  received  goods  that  were  stolen  and 
will  be  hanged  for  them.2  You  have  passed  counterfeit 
money.3  So  to  allege  that  one  got  his  sister  with  child,  or 
had  carnal  intercourse  with  his  daughter,  does  not  impute 


"  Taken  by  itself,  and  without  more,  the  understanding  of  a  person  who  hears  an 
expression  is  not  the  legal  mode  by  which  it  is  to  be  explained.  If  words  are  uttered 
or  printed,  the  ordinary  sense  of  those  words  is  to  be  taken  to  be  the  meaning  of  the 
speaker."  (Daines  v.  Hartley,  3  Ex.  200.)  "There  can  be  no  doubt  that  words 
may  be  explained  by  bystanders  to  import  something  very  different  from  their  obvi- 
ous meaning.  The  bystanders  may  perceive  that  what  is  uttered  is  uttered  in  an 
ironical  sense,  and  therefore  that  it  may  mean  directly  the  reverse  of  what  it  pro- 
fesses to  mean.  Something  may  have  previously  passed  which  gives  a  peculiar  char- 
acter and  meaning  to  some  expression;  and  some  word  which  ordinarily  is  used  in 
one  sense  may,  from  something  that  has  gone  before,  be  restricted  and  confined  to  a 
particular  sense,  or  may  mean  something  different  from  that  which  it  ordinarily  and 
usually  does  mean."    (Id.) 

"  We  are  to  understand  words  in  the  same  sense  as  the  hearers  understood  them." 
(Button  v.  Hey  ward,  8  Mod.  24.)  "In  a  common  sense,  according  to  the  vulgar 
intendment  of  the  bystanders."  (Somers  v.  House,  Holt,  39;  ante,  §  135;  Hankinson 
v.  Bilby,  16  M.  <fe  W.  442.)  Language  imputing  an  indictable  offense  is  actionable  or 
not,  according  to  the  sense  in  which  it  may  fairly  be  understood  by  those  who  hear  or 
read  it,  and  who  are  not  acquainted  with  the  matter  to  which  they  relate,  or  which 
may  render  them  a  privileged  communication.  (Id.)  To  accept  the  understanding 
of  the  words  by  the  hearer  or  reader  as  their  true  meaning  "  would  be  to  make  the 
defendant's  liability  depend,  not  on  his  own  malicious  intent  aud  purpose,  in  using 
the  language,  which  might  be  quite  innocent  and  free  from  blame,  but  upon  the  mis- 
conception or  morbid  imagination  of  the  person  in  whose  hearing  they  were  spoken." 
(Heard  on  Libel,  §  268,  citing  Snell  v.  Snow,  13  Mete.  2*78;  Van  Vechten  v.  Hopkins, 
5  Johns.  211;  Gibson  v.  Williams,  4  Wend.  320;  Allensworth  v.  Coleman,  5  Dana, 
315.)  The  judgment  of  the  witness  is  not  to  be  substituted  for  the  judgment  of  the 
jury.  (Heard  on  Libel,  §  269.)  "  Words  are  to  be  taken  in  that  sense  that  is  most 
natural  and  obvious,  and  in  which  those  to  whom  they  are  spoken  will  be  sure  to 
understand  them.     (Id.,  §  163.) 

J  Bacon's  case,  Dal.  41,  pi.  21. 

2  Ratcliff  v.  Long,  Palm.  67;  in  Miller  v.  Miller,  S  Johns.  74:  Held,th&t  where  the 
offense  charged  was  concealing  stolen  goods,  it  was  not  necessary  to  allege  that  the 
plaintiff  knew  the  goods  were  stolen.     See  notes  to  §  173,  post. 

3  Pike  v.  Van  Wormer,  6  How.  Pr.  R.  171 ;  Church  v.  Bridgman,  6  Miss.  190. 


§  142.]  CONSTRUCTION    OF   LANGUAGE.  179 

incest  without  an  allegation  that  the  plaintiff  was  guilty 
of  the  act  charged  with  a  knowledge  of  the  relationship.1 
Without  an  allegation  of  knowledge,  it  was  held  not  ac- 
tionable to  charge,  "  He  hath  gotten  much  wealth  by  trad- 
ing with  pirates," 3  or,  "  He  was  confederate  with  Campion 
the  Jesuit," 2  or,  "  He  poisoned  Smith," 4  or, "  He  is  a  main- 
tainer  of  thieves," 5  or,  "  He  offered,  or  was  about  to  offer 
for  sale  unwholesome  meal." 6 

§  142.  It  is  customary  to  concede  (1)  that  formerly 
courts  construed  language  in  mitiori  sensu,  and  (2)  that 
the  practice  of  so  construing  language  has  been  aban- 
doned.7    These   propositions   require   some   qualification. 


1  Lumpkins  v.  Justice,  1  Smith  (Ind.)  322  ;  Griggs  v.  Vickroy,  12  Ind.  549. 

2  Crook  v.  Averin,  Godb.  252;   2  Eulst.  216. 

3  Brown  v.  Lisle,  Cro.  Eliz.  251. 

4  Jacob  v.  Miles,  Vin.  Abr.,  Act.  for  Words,  E.  b. ;  and  see  March  v.  Davidson,  9 
Paige,  580,  and  post,  §  144,  subd.  x. 

8  Ball  v.  Bridges,  Cro.  Eliz.  746;  and  see  Tabbe  v.  Matthew,  1  Bulst.  109. 

6  Hemmenway  v.  "Woods,  1  Pick.  524.     See  note  1,  page  174,  ante. 

7  Where  words  are  ambiguous,  so  as  they  may  be  expounded  in  good  or  ill  part, 
no  action  lies,  for  they  shall  be  expounded  in  the  best  sense.  (Anon.,  Cro.  Eliz.  672.) 
"  The  law  strains  not  to  hurt  but  to  heal."  (Coote  v.  Gilbert,  Hob.  77  PI.  100);  and 
"  where  words  are  indifferent,  and  are  equally  liable  to  two  distinct  interpretations, 
we  ought  to  construe  them  in  mitiori  sensu,  but  we  will  never  make  any  exposition 
against  the  plain,  natural  import  of  the  words."  (Pratt,  C.  J.,  Button  v.  Heyward,  8 
Mod.  24;  and  see  Naber  v.  Miecock,  Skin.  183.)  Words  are  not  to  be  taken  in  a 
milder  sense  than  they  have  in  common  acceptation.  (Beers  v.  Strong,  Kirby,  12.) 
The  maxim  for  expounding  words  in  mitiori  sensu  has  for  a  great  while  been  exploded. 
(Fortescue,  J.,  Button  v.  Ueywood,  8  Mod.  24;  Eoberts  v.  Camden,  9  East,  93;  and 
see  Wakley  v.  Healey,  7  Com.  B.  591;  Ogden  v.  Riley,  2  Green,  186;  Duncan  v. 
Brown,  15  B.  Monr.  186;  Fallenstein  v.  Boothe,  13  Mo.  R.  427;  Demarest  v.  Blaring, 
6  Cow.  76  ;  Pike  v.  Van  Wormer,  6  How.  Pr.  R.  99 ;  Backus  v.  Richardson,  5  Johns. 
476.)  "The  earlier  English  judges  discouraged  the  action  of  slander  by  all  sorts  of 
evasions."  (Gibson,  J.,  Bash  v.  Sommer,  20  Penn.  St.  R.  159;  and  see  Harrison  v. 
Thornborough,  10  Mod.  196.)  "  We  will  not  give  more  favor  unto  actions  on  the  case 
for  words  than  of  necessity  we  ought  to  do,  where  the  words  are  not  apparently  scan- 
dalous, these  actions  being  now  too  frequent."  (Coke,  C.  J.,  Crofts  v.  Brown,  3  Bulst. 
167.)  In  Alsop  v.  Alsop  (5  Hurl.  <fe  N.  534),  the  court  says  actions  for  slander  are  not 
to  be  encouraged;  and  see  Bennett  v.  Williamson,  4  Sandf.  67,  where  it  is  said: 
"The  law  of  libel  ought  to  be  considered  and  is  in  its  spirit  a  benevolent  and  salutary 
provision  for  the  peace  and  security  of  the  community,  but  it  cannot  redress  every 
injury  sustained  by  a  breach  of  morals  or  of  good  manners.     We  may  not  approve  of 


180  CONSTRUCTION    OF   LANGUAGE.  [Cll.    VII. 

Alleged  defamatory  matter  comes  "before  the  court  for 
construction  in  the  form  of  a  pleading,  and  then  of  course 
is  governed  by  the  rules  for  construing  pleadings,  and 
among  these  rules  that  by  which  the  pleader  is  supposed 
to  have  stated  his  case  in  the  manner  most  favorable  to 
himself.1     We  are  of  the  opinion  that  an  examination  of 

the  taste  of  publications  such  as  is  set  forth  in  the  declaration  in  this  case.  We  may 
lament  the  existence  of  a  disposition  to  make  private  character  too  much  the  subject 
of  comment  and  abuse  without  having  it  in  our  power  through  the  instrumentality  of 
the  law  to  arrest  the  evil ; "  and  in  Dollaway  v.  Turrell,  26  "Wend.  397,  the  action  for 
libel  is  designated  as  a  sordid  action.  "  Although  slanders  are  to  be  suppressed,  yet 
the  judges  had  resolved  that  actions  for  scandals  should  not  be  maintained  by  any 
strained  construction."  (Wray,  C.  J.,  Stanhope  v.  Blith,  4  Co.  15.)  Ch.  J.  Holt  said 
that,  whenever  words  tended  to  take  away  a  man's  reputation,  he  would  encourage 
actions  for  them,  because  so  doing  would  contribute  to  the  preservation  of  the  peace ; 
and  he  repeated  a  story  attributed  to  Justice  Twisden,  of  a  man  who,  failing  in  his 
action  for  words,  said,  if  he  thought  he  should  not  have  recovered  damages  he  would 
have  cut  the  defendant's  throat.  (Baker  v.  Pearce,  L'd  Raym.  959;  6  Mod.  24;  Cas. 
temp.  Holt,  654 ;  and  see  ante,  note  p.  9*7.)  One  who  couches  his  slander  in  ambigu- 
ous terms,  in  the  hope  of  blasting  the  reputation  of  his  neighbor,  without  incurring 
any  legal  responsibility,  cannot  claim  an  indulgent  construction  of  his  words.  (Gibson 
v.  Wiliams,  4  Wend.  320.) 

Starkie  (1  Starkie  on  Libel,  47)  refers  to  the  following  cases  as  specimens  of  the 
doctrine  of  benignior  sensus :  "  Thou  art  as  arrant  a  thief  as  any  in  England,  for  thou 
broken  up  J.  S.'s  chest,  and  taken  away  £40."  After  verdict  for  plaintiff  held  not 
actionable.  (Forster  i>.  Browning,  Cro.  Jac.  687.)  "Thou  art  a  lewd  fellow;  thou 
didst  set  upon  rne  by  the  highway,  and  take  my  purse  from  me,  and  I  will  be  sworn 
to  it."  After  judgment  for  the  plaintiff,  held  on  error  not  actionable.  (Holland  v. 
Stoner,  Cro.  Jac.  315.)  "Thou  art  a  thievish  rogue,  and  hast  stolen  bars  of  iron  out 
of  other  men's  windows;  "  held  not  actionable.  (Cro.  Jac.  204.)  "J.  D.  was  robbed 
of  £40,  and  Alice  Bagg  (the  plaintiff)  and  J.  S.  had  it,  and  for  which  they  will  be 
hanged ;  "  after  judgment  for  plaintiff,  held  not  actionable.  (King  v.  Bagg,  Cro.  Jac. 
331.)  And  so  of  "Thou  dost  lead  a  life  in  manner  of  a  rogue;  I  doubt  not  but  to  see 
thee  hanged  for  striking  Mr.  Sydman's  man,  who  was  murdered."  (Barrons  v.  Ball, 
Cro.  Jac.  331.) 

1  The  law  will  not  assume  in  favor  of  a  party  any  thing  he  has  not  averred  (Cruger 
v.  Hudson  River  R.  R.  Co.,  12  N.  Y.  201),  or  that  the  pleading  is  less  strong  than  the 
facts  warrant  (id.).  A  pleading  is  to  be  construed  in  its  popular  sense  (Woodbury  v. 
Sackrider,  2  Abb.  Pr.  R.  405;  Munn  v.  Morewood,  5  Sandf.  557);  according  to  what 
it  says,  and  not  what  the  pleader  intended.  (Gould  v.  Glass,  19  Barb.  185;  and  see 
Allen  v.  Patterson,  7  N.  Y.  480;  Sheddon  v.  Patrick,  1  Macq.  H.  L.  Cas.  535.)  The 
court  will  not,  in  support  of  a  pleading,  infer  a  criminal  intention  where  the  pleader 
has  not  ventured  directly  to  aver  its  existence.  (Bartholomew  v.  Bentley,  15  Ohio, 
670.)  "It  is  a  clear  principle  that  the  language  of  an  indictment  [a  pleading]  must 
be  construed  by  the  rules  of  pleading,  and  not  by  the  common  interpretation  on  ordi- 
nary language,  for  nothing  indeed  differs  more  widely  in  construction  than  the  same 
matter  when  viewed  by  the  rules  of  pleading  and  when  construed  by  the  language  of 


§   142.]  CONSTRUCTION   OF    LANGUAGE.  181 

the  decisions  will  disclose  the  fact  that  what  are  regarded 
as  constructions  in  mitiori  sensu  are  usually  a  more  or  less 
rigorous  application  of  this  rule  of  pleading.  The  words 
admitting  of  two  constructions,  the  one  actionable  and 
the  other  not  actionable,  where  the  pleader  failed  to  point 
the  language  to  the  actionable  meaning,  courts  have  re- 
fused to  put  the  actionable  meaning  on  the  language,  sup- 
posing that  if  the  language  had  such  a  meaning  the 
pleader  would  have  pointed  it  out.  The  rule  requiring 
certainty  in  the  allegations  of  a  pleading  was  no  doubt 
carried  to  excess,1  but  we  take  it  to  have  always  been  and 
to  be  still  the  rule,  that  where  a  party  makes  a  charge  of 
having  been  injured  by  language  it  is  for  him  to  show 
that  the  words  have  a  defamatory  sense,2  and  that  where 
the  language  is  equally  as  susceptible  of  a  harmless  as  of 
an  injurious  meaning,  it  is  the  duty  of  the  pleader  and  not 
of  the  court  to  point  out  the  injurious  meaning,  and  if  he 
fails  to  do  this  the  court  will  not  put  upon  the  language 
the  injurious  meaning.  Although  there  may  be  no  rule 
by  which  courts  are  required  to  put  on  ambiguous  lan- 


ordinary  life."  (Per  Erie,  J.,  in  Reg.  v.  Thompson,  16  Q.  B.  832,  846  ;  4  Eng.  Law  & 
Eq.  R.  287,  292;  and  see  Blickenstaff  v.  Perrin,  27  Ind.  527;  Lukehart  v.  Byerley,  53 
Penns.  418.) 

1  Action  for  The  words  Home  dit:  Sir  Th.  Holt  hath  taken  a  cleaver  and  stricken 
his  cook  upon  the  head,  so  that  one  side  of  the  head  fell  upon  one  shoulder  and  the 
other  upon  the  other  shoulder,  et  [the  declaration]  ne  averr  que  le  cook  fuit  mort,  et 
pur  ceo  fuit  adjudge  nemy  bon.     (Rolle  R.  286.) 

8  Tindal,  Ch.  J.,  Edsall  v.  Russell,  5  Scott's  N.  R.  801 ;  2  Dowl.  N.  S.  614;  4  M.  & 
G.  1090;  12  Law  Jour.  Rep.  N.  S.  C.  P.  4;  note  3,  p.  167,  ante.  "  Either  the  words  them- 
selves must  be  such  as  can  only  be  understood  in  a  criminal  sense,  or  it  must  be  shown 
in  a  colloquium  in  the  introductory  part  that  they  have  that  meaning,  otherwise  they 
are  not  actionable."  (Holt  v.  Scholefield,  6  T.  R.  691.)  Words  to  be  actionable  should 
be  unequivocally  so.  (Harrison  v.  Stratton,  4  Esp.  Cas.  218.)  "Where  there  is  no 
colloquium,  the  plaintiff  must  be  held  to  allege  that  the  words  were  used  in  their  natu- 
ral and  ordinary  signification  (Edgerly  v.  Swain,  32  N.  Hamp.  478);  and  theywill  be 
so  construed,  and  not  in  mitiori  sensu.  (Chaddock  v.  Briggs,  13  Mass.  248;  Bloss  v. 
Tobey,  2  Pick  320.)  Where  the  words  have  two  meanings,  one  of  them  harmless,  and 
the  other  injurious,  the  innuendo  may  properly  point  out  the  injurious  meaning. 
(Joralemon  v.  Pomeroy,  2  N.  Jersey,  271 ;  Griffith  v.  Lewis,  8  Q.  B.  841;  7  Law 
Times,  177;  Gosling  v.  Morgan,  32  Penns.  273.) 


182  CONSTRUCTION    OF   LANGUAGE.  [Ch.  VII. 

guage  its  non- actionable  sense,  certainly  there  is  no  rule 
by  which  courts  are  required  to  put  on  ambiguous  lan- 
guage the  actionable  sense.  The  rule  is  that  the  natural 
meaning  is  to  be  taken,1  and  if  in  that  view  the  language 
will  bear  a  non-actionable  meaning  equally  as  well  as  an 
actionable  one,  courts  will  adopt  the  non-actionable  con- 
struction. Where  the  meaning  is  doubtful,  the  pleader 
may  by  an  innuendo  point  the  language  to  the  sense  in 
which  he  wishes  it  to  be  understood.  Where  the  alleged 
defamatory  matter  was  that  A.,  a  prostitute,  was  under 
the  patronage  or  protection  of  the  plaintiff,  but  there  was 
no  innuendo  pointing  an  injurious  meaning,  the  language 
was  held  not  actionable.  The  court  held,  in  effect,  that  it 
would  not  give  language  the  injurious  sense  when  the 
words  may  as  properly  receive  a  harmless  as  an  offensive 
construction.2  "  Where  words  in  their  ordinary  sense  do 
not  bear  a  defamatory  construction  there  must  be  a  dis- 
tinct averment  that  the  words  bear  a  meaning  that  is  ac- 
tionable."3    Courts  will  not  strain  to  find  an  innocent 

1  Words  "  are  not  to  be  taken  in  the  more  lenient  or  the  more  severe  sense,  but  in 
the  sense  which  fairly  belongs  to  them,  and  which  they  were  intended  to  convey." 
(IA1  Ellenborough,  Rex  v.  Lambert,  2  Camp.  N.  P.  Cas.  398.)  See  note  1,  p.  167,  ante. 
The  court  will  not  in  support  of  a  pleading  infer  a  criminal  intention,  when  the  pleader 
has  not  ventured  directly  to  aver  its  existence.  (Bartholomew  v,  Bentley,  15  Ohio, 
670.) 

8  More  v.  Bennett,  33  How.  Pr.  R.  180;  48  Barb.  229;  and  see  Dolloway  v.  Turroll, 
26  Wend.  383 ;  the  court  in  the  absence  of  an  innuendo  construed  in  a  harmless  sense 
a  charge  of  using  money  for  shaving  purposes.  (Stone  v.  Cooper,  2  Denio,  292.)  In 
Edsall  v.  Paissell  (5  Scott,  N.  R.  801 ;  2  Dowl.  N,  S.  614 ;  4  Man.  <fe  G.  1090),  the  words 
were,  "  He  made  up  the  medicines  wrong  through  jealous\',  because  I  would  not  allow 
him  to  use  his  own  judgment."  There  being  no  innuendo  that  the  defendant  meant 
to  impute  that  the  medicines  occasioned  any  injury,  the  court  refused  to  put  that 
meaning  upon  them,  and  held  the  words  not  actionable.  And  see  Forbes  v.  King,  1 
Dowl.  672 ;  Kelly  v.  Partington,  5  B.  &  Adol.  645.  The  head  note  to  Wesley  v.  Ben- 
nett (5  Abb.  Pr.  R.  498);  that  "where  the  words  alleged  in  a  complaint  for  libel  are 
fairly  susceptible  of  a  construction  which  would  render  them  actionable,  the  complaint 
will  be  sustained  upon  demurrer,  although  the  words  may  also  be  interpreted  in  a  way 
which  would  render  them  innocent,"  although  it  may  be  a  correct  statement  of  the 
law,  seems  not  to  be  justified  by  the  opinion  of  the  court.  The  decision  was  that  the 
alleged  libel  might  "  fairly  be  held  to  mean"  that  plaintiff  was  engaged  in  the  con- 
spiracy mentioned  in  the  charge. 

3  Blackburn,  J.,  Cox  v.  Cooper,  9  Law  Times,  N.  S.  329. 


§   142.]  CONSTRUCTION    OF     LANGUAGE.  183 

meaning,  nor  will  the  court  put  a  forced  construction  on 
words  having  an  innocent  meaning.  The  words,  he  was 
guilty  of  most  abominable  conversation  and  exposure  of 
his  person  held  not  actionable  per  se.1  Where  the  allega- 
tion was  that  defendant,  speaking  of  certain  spoons 
belonging  to  her,  said,  "I  dare  say  she  [the  plaintiff]  has 
some  of  them  in  her  pocket."  There  being  no  innuendo, 
held  not  actionable  as  plaintiff  might  have  the  spoons  in 
her  pocket  innocently.2  Publishing  of  plaintiff  that  he 
figured  prominently  in  the  squatter  riots  not  explained  by 
innuendo,  held  not  actionable  as  it  did  not  follow  plaintiff 
was  wrongly  or  unlawfully  engaged  in  said  riots.3  Where 
the  words  were  of  persons  in  trade,  "  look  out  sharp  to  get 
your  bills  met  by  them,"  the  court  held  that  prima  facie 
the  words  were  harmless.4  And  the  word  "  blackleg  "  un- 
explained was  held  not  actionable.5  So,  there  being  no 
proper  colloquium  to  point  the  meaning  of  the  words  "  he 
was  taken  to  court  on  a  charge  of  forgery  "  were  held  not 
actionable  as  they  might  mean  plaintiff  was  taken  to 
court  as  a  witness.6  Among  other  reasons  which  might 
be  urged  for  requiring  the  plaintiff  to  allege  in  what  sense 
he  considers  and  desires  the  court  and  jury  to  consider 
the  language  was  used  is  this,  that  unless  he  does  so  he 
deprives  the  defendant  of  the  right  to  traverse  the  sense 
which  the  plaintiff  imputes  to  the  language  of  which  he 
complains.  An  instance  of  the  advantage  to  a  defendant 
of  this  right  is  the  case  where  the  plaintiff  alleged  that  de- 
fendant had  applied  to  him  the  term  "  black  sheep,"  and 
that  the  defendant  was  accustomed  to  use  that  term  to  mean 
a  person  of  bad  reputation,  and  that  the  term  was  so  used 

1  Torbett  v.  Clare,  9  Irish  Law  Rep.  89 ;  Ward  v.  Reynolds,  1  Lav.  &  Mer.  507. 

2  Martinere  v.  Mackay,  2  Law  Reporter,  120  (London,  1822). 

3  Clarke  v.  Fitch,  to  be  reported,  40  or  41  Cal. 

4  Daines  v.  Hartley,  3  Ex.  200. 

6  Earnett  v.  Allen,  1  Fos.  <fe  F.  1»5;  3  Hurl.  &  N.  376. 
6  Harrison  v.  King,  7  Taunt.  431 ;  affirming  4  Trice,  46. 


184  CONSTRUCTION    OF   LANGUAGE.  [Ch.    VII. 

on  the  occasion  of  which  the  plaintiff  complained.  The 
defendant  pleaded  that  he  had  not  so  used  the  term  on  the 
occasion  in  question,  and  upon  demurrer  the  plea  was 
sustained.1 

§  143.  Where  language  may  be  taken  in  a  double 
sense,  the  court,  after  a  verdict,  will  usually  construe  it  in 
that  sense  which  will  support  the  verdict.2     If  the  lan- 


1  McGregor  v.  Gregory,  11  M.  &  W.  28*7;  affirming  Clarkson  v.  Lawson,  6  Bing. 
587. 

s  la  Burgess  v.  Boucher,  8  Mod.  240,  it  is  said  that  after  verdict  the  court  will 
always  construe  the  words  to  support  the  verdict,  and  the  dictum  is  repeated  by  Star- 
He  without  qualification.  (2  Starkie  on  Slander,  108.)  But  such  a  rule  as  was 
pointed  out  by  Best,  C.  J.,  in  Goldstein  v.  Foss  (6  B.  &  Cr.  154;  9D.4E.  197:  4 
Bing.  489:  Moo.  &  P.  402;  2Y.it  Jer.  146),  would  practically  deprive  a  party  of  the 
right  to  move  in  arrest  of  judgment;  and  see  Forbes  v.  King,  1  Dowl.  Pr.  Cas.  672. 
In  Ceely  v.  Hoskins  (Cro.  Car.  509),  the  words  were,  "  Thou  art  forsworn  in  a  court  of 
record,  and  that  I  will  prove."  It  was  contended  after  verdict  for  plaintiff  that  the 
action  would  not  lie,  because  it  was  not  said  in  what  court  of  record  he  was  forsworn, 
nor  that  he  was  forsworn  in  giving  any  evidence  to  a  jury  ;  that  it  might  be  intended 
only  that  he  was  forsworn,  not  judicially,  but  in  ordinary  discourse  in  some  court  of 
record:  Held,  the  words  must  be  taken  as  an  accusation  of  perjury  ;  the  court  adds ;  to 
say  such  an  one  is  a  murderer  without  saying  whom  he  murdered,  or  when,  an  action 
lies,  and  it  shall  not  be  intended  that  he  was  a  murtherer  of  hares,  unless  such  foreign 
intendment  be  shown  or  discovered  in  pleading.  In  Baal  v.  Baggerly  (Cro.  Car.  326), 
the  words  were,  "  Thou  hast  forged  a  privy  seal  and  a  commission  !  why  dost  thou 
not  break  open  thy  commission?"  after  verdict  for  plaintiff  it  was  contended  that  tlie 
words  were  not  actionable,  but  by  the  court  being  found  guilty,  the  words  are  to  be 
intended  according  to  the  vulgar  interpretation,  that  the  king's  privy  seal  was  meant, 
the  counterfeiting  whereof  is  treason.  In  Somers  v.  House  (Holt,  39),  the  words  were, 
"  You  are  a  rogue,  and  broke  open  a  house  at  Oxford ;  and  your  grandfather  was 
forced  to  bring  over  £30  to  mend  the  breach ;  "  after  verdict  for  plaintiff,  it  was  urged 
in  arrest  of  judgme  :t  that  the  word  rogue  was  not  actionable,  that  breaking  open  a 
house  was  but  a  trespass,  and  mending  the  breach  might  be  repairing ;  but  the  court 
held  the  contrary,  for,  taking  all  the  words  together,  one  who  heard  them  could  not 
but  understand  a  felonious  breaking;  the  court  would  take  the  words  in  a  common 
sense  according  to  the  vulgar  intendment  of  the  bystanders.  In  Baker  v.  Pierce  (L'd 
Raym.  959;  6  Mod.  234;  Holt,  654),  the  words  were,  "  Baker  stole  my  boxwood,  and 
I  will  prove  it."  After  verdict  for  plaintiff,  it  was  urged  in  arrest  of  judgment,  that 
the  words  mean  wood  growing,  of  which  only  a  trespass  could  be  committed.  That 
to  say  you  are  a  thief,  and  have  stolen  my  timber,  or  my  apples,  or  my  hops,  is  not 
actionable,  for  it  imports  only  a  trespass;  but  the  court  ordered  judgment  for  the 
plaintiff,  and  denied  the  authority  of  the  case  of  Mason  v.  Thompson  (Ilutt.  38),  in 
which  the  words  "I  charge  thee  with  felony  in  taking  forth  from  J.  D.'s  pocket,  and 

1  will  prove  it,"  were  held  not  actionable.     In  3  Salk.  325 ;  2  Vent.  172.  2  Lev.  51 ; 

2  Sir  T.  Jo.  235,  the  words  were  "he  is  a  clipper  and  coiner;"  after  verdict  for 


§  143.]  CONSTRUCTION    OF    LANGUAGE.  185 

guage  admits  of  a  harmless  as  well  as  an  injurious  mean- 
ing, which  is  the  meaning  to  be  attached  to  it  will  be 
resolved  by  the  verdict.1  It  is  not  sufficient  to  show  by 
argument  that  the  language  will  admit  of  some  other 
meaning  than  that  which  obviously  the  jury  have  at- 
tached to  it,2  and  therefore,  after  verdict  for  plaintiff,  lan- 
guage which  admits  of  an  innocent  and  an  injurious 
meaning  will  be  construed  to  have  its  injurious  meaning.3 
After  verdict  all  averments  on  the  side  of  the  successful 
party  which  were  involved  in  the  issue  tried,  will  be 
taken  to  have  been  duly  proved  unless  the  contrary  ap- 
pear upon  the  record,4  and  thus  after  verdict  for  plaintiff, 

plaintiff,  it  was  moved  in  arrest  of  judgment  that  it  was  not  a  charge  of  clipping  and 
coining  money,  but  held  a  clipping  and  coining  of  money  must  be  intended.  Where 
the  words  were  spoken  by  a  married  woman,  charging  a  theft  of  her  goods,  to  support 
a  verdict  it  was  held  that  she  meant  a  theft  of  her  goods  before  marriage.  (Powell  v. 
Plunkett,  Cro.  Car.  52.) 

1  Ford  v.  Primrose,  5  D.  &  Ry.  287 ;  Giddins  v.  Merk,  4  Geo.  364 ;  O'Conner  v. 
Lloyd,  2  Hudson  &  Br.  626;  Chapman  v.  Smith,  13  Johns.  78;  Sherwood  v.  Chase, 
11  Wend.  38. 

2  Woolnoth  v.  Meadows,  5  East,  463 :  Roberts  v.  Camden,  9  East,  93. 

3  "  Words  or  signs  will,  after  a  verdict  for  the  plaintiff,  be  considered  by  the  courts 
to  have  been  used  in  their  worst  sense."  (1  Starkie  on  Slander,  60;  repeated,  Heard 
on  Libel,  §  173,  citing  Southee  v.  Denny,  1  Ex.  195 ;  Sloman  v.  Dutton,  10  Bing.  402 ; 
4  M.  &  Sc.  174 ;  Wakley  v.  Healey,  7  Com.  B.  591 ;  Tomlinson  v.  Brittlebank,  4  B. 
&  Adol.  630;   1  Nev.  &  M.  455;  Francis  v.  Roose,  3  M.  <fc  W.  191 ;  Hughes  v.  Reese, 

4  M.  &  W.  204;  Rowcliffe  v.  Edmonds,  7  M.  &  W.  12;  Digby  v.  Thompson,  4  B.  & 
Adol.  821;  1  Nev.  &  M.  485;  Daines  v.  Hartley,  3  Ex.  200;  Read  v.  Ambridge,  6  C. 
&  P.  308;  Shipley  v.  Todhunter,  7  C.  &  P.  680;  Chaddock  v.  Briggs,  13  Mass.  248; 
Goodrich  v.  Davis,  11  Mete.  473 ;  Brown  v.  Lamberton,  2  Binney,  35 ;  Bloom  v.  Bloom, 

5  Serg.  &  R.  391 ;  Cornelius  v.  Van  Slyck,  21  Wend.  70 ;  Butterfield  v.  Buffum,  9  N. 
Hamp.  156;  Hamilton  v.  Smith,  2  Dev.  &  B.  274;  Hancock  v.  Stephens,  11  Hump. 
509;  Goodrich  v.  Woolcott,  3  Cow.  231;  Walton  v.  Singleton,  7  Serg.  &  R.  451;  and 
see  Beers  v.  Strong,  Kirby,  12.) 

One  of  the  reports  commenced,  "  Wilful  and  corrupt  perjury ; "  held  that,  after 
verdict  for  the  defendant,  this  must  be  taken  as  a  description  of  the  nature  of  the 
charge,  not  as  an  imputation,  by  the  publisher,  of  the  perjury  in  fact.  (Lewis  v.  Levy, 
1  Ellis,  B.  &  E.  537.) 

Publishinj;  in  writing  that  the  plaintiff  had  realized  the  fable  of  the  frozen  snake; 
after  verdict  for  plaintiff,  the  court  refused  to  arrest  the  judgment,  as  the  jury  might 
have  understood  the  words  "  frozen  snake"  to  impute  a  charge  of  ingratitude  to  friends, 
although  not  so  explained  by  innuendo.  (Hoare  v.  Silverlock,  12  Ad.  &  Ell.  N.  S. 
624.) 

4  Gates  v.  Bowker,  18  Verm.  (3  Washb.),  23;  Cass  v.  Anderson,  33  Verm.  (4  Shaw) 

13 


186  CONSTRUCTION    OF   LANGUAGE.  [CL  VII. 

if  the  language  published  may  in  its  ordinary  acceptation 
and  without  the  aid  of  extrinsic  circumstances  be  reasona- 
bly understood  as  having  an  actionable  meaning,  judgment 
will  not  be  arrested  upon  the  ground  that  the  inducement 
and  innuendoes  do  not  sufficiently  apply  the  language  to 
the  plaintiff,  nor  because  the  innuendoes  in  so  far  as  they 
apply  the  language  to  the  plaintiff  are  unwarranted.1  If 
the  innuendoes  are  unwarranted  in  any  other  respect  it  is 
a  ground  for  arresting  the  judgment,  of  which  hereafter.3 

§  144.  We  will  here  give  some  few  additional  illustra- 
tions of  the  manner  in  which  the  courts  have  construed 
certain  language  ;  many  more  illustrations  will  be  found 
in  the  next  succeeding  chapter : 

a.  Afliiltfrij. — A   charge   of  violating   the    seventh    com- 

mandment held  not  to  import  a  charge  of  adultery.3 

b.  And — For. — A   distinction   has   been  taken   between 

saying,  Thou  art  a  thief,  for  thou  hast  stolen  such  a 
thing,  as  a  tree,  which  could  not  be  felony,  and  the 
saying,  Thou  art  a  thief,  and  hast  stolen  such  a  thing, 
since  in  the  former  case  the  subsequent  words  show 
the  reason  of  calling  the  plaintiff  a  thief,  and  that  no 
felonious  imputation  was  meant ;  but  in  the  latter,  the 
action  lies  for  calling  him  a  thief,  and  the  addition, 
Thou  hast  stolen,  is  another  distinct  sentence  by  itself, 
and  not  the  reason  of  the  former  speech,  nor  any 
diminution  thereof.4     To  say  one  has  been  in  jail  for 

182;  Hoyle  v.  Young,  1  Wash.  150;  Ramsey  v.  Elms,  3  Jur.  1189.  But  nothing 
more  will  be  presumed  after  verdict  than  is  necessary  to  support  the  allegations. 
(Sweetapple  v.  Jesse,  2  Nev.  <fc  M.  36 ;  5  B.  &  Adol.  27.)  Where  the  words  taken  by 
themselves  do  not  necessarily  import  a  charge  of  crime,  yet  where  it  is  alleged  in  the 
innuendo  that  the  defendant  meant  by  the  words  that  the  act  was  maliciously  done, 
they  will  be  taken,  after  verdict,  to  have  been  intended  to  import  such  a  charge. 
(Tuttle  v.  Bishop,  30  Conn.  80;  and  see  Kennedy  v.  Gifford,  19  Wend.  256;  Beers  v. 
Strong,  Kirby,  12;  Ramsey  v.  Elms,  3  Jurist,  1189.) 

1  Wakley  v.  Healey,  18  Law  Jour.  C.  P.  241 ;  7  C.  B.  591. 

2  Note  to  §  362,  post. 

3  Farnsworth  v.  Storrs,  5  Cush.  412. 

"Cro.  Jac.   114;  Bull.  N.  P.  5 ;  Hob.  77,  106;  Cro.  Eliz.   857;  Browl.  2,  Godb. 


§   144.]  CONSTRUCTION    OF   LANGUAGE.  187 

stealing,  in  some  cases  held  not  to  imply  that  the 
party  stole,  and  in  others  that  it  did.  In  the  latter 
class  of  cases,  it  was  said  he  could  not  be  imprisoned 
for  stealing  if  he  did  not  steal.1 
c.  Arson. — The  words  "  Thou  set  fire  to  those  buildings, 
and  thou  wilt  never  be  easy  till  thou  hast  told  of  it," 
do  not  impute  arson.2  So  of  the.  words,  "  he  fired 
his  house ; " 3  he  burnt  my  barn ; 4  he  set  the  store  on 
fire,  and  none  but  him ; 5  T.  burned  the  mill  himself; 6 
but  the  words,  He  set  fire  to  and  burnt  my  factory, 
were  construed  to  mean  a  willful  burning ; 7  and  the 
words,  "  Public  ojpinion  says  you  was  the  author  of  it 
(firing  a  stable),  and  what  public  opinion  says  I  be- 
lieve to  be  true,"  held  to  amount  to  a  charge  of 
arson ; 8  and  so  of  the  words,  "  I  have  every  reason  to 
believe  he  burnt  the  barn,  and  I  believe  he  burnt  the 
barn." 9  "  You  set  your  house  on  fire,  you  are  a  bad 
character,"  thereby  meaning  that  plaintiff  had  been 
guilty  of  willfully  setting  his  house  on  fire,  and  was 
a  person  of  bad  character,  and  had  subjected  himself 
to  the  penalties  of  the  law  for  setting  his  house  on 


241  ;  Hard.  7 ;  All.  31 ;  Sty.  66  ;  1  Starkie  on  Slander,  99.  This  distinction  was  re- 
ferred to  and  its  correctness  questioned  by  Holt,  Ch.  J.,  Baker  v.  Pierce,  6  Mod.  23, 
where  it  is  said  and  and  for  have  the  same  meaning;  and  see  Lewis  v.  Acton,  Yelv. 
34. 

a  Vin.  Abr.,  Act.  for  Words,  P.  «.  2. 

2  Rigby  v.  Heron,  1  Jur.  558. 

3  Anon.,  11  Mod.  220. 

4  Barham  v.  Nethersoll,  Yelv.  21. 

5  McNab  v.  McGrath,  5  Up.  Can.  Q.  B.  Rep.  0.  S.  516. 
c  Tibbetts  v.  Gooding,  9  Gray  (Mass.),  254. 

7  Tuttle  if.  Bishop,  30  Conn.  80. 

"Gage  v.  Shelton,  3  Rich.  242.  It  is  the  general  opinion  of  the  people  in  J. 's 
(plaintiffs)  neighborhood  that  he  burnt  C.'s  gin-house,  held  actionable.  (Waters  v. 
Jones,  3  Port.  442.) 

9  Logan  v.  Steele,  1  Bibb,  593  ;  I  believe  A.  (plaintiff)  burnt  the  camp-ground,  held 
actionable.  (Giddens  v.  Mirk,  4  Geo.  364.)  My  watch  was  stolen  in  Polly  Miller's 
bar ;  I  have  reason  to  believe  that  Tina  M.  (plaintiff)  took  it,  and  Polly  Miller,  her 
mother,  concealed  it,  actionable.     (Miller  v.  Miller,  8  Johns.  60.) 


188  CONSTRUCTION   OF   LANGUAGE.  [Ch.  VIE. 

fire,  there  being  no  colloquium  that  the  words  were 
concerning  a  house  insured  by  the  plaintiff  against 
fire,  nor  of  a  house  situated  in  or  contiguous  to  a 
populous  neighborhood,  held  on  motion  in  arrest  of 
judgment  after  a  verdict  for  plaintiff,  that  the  words 
were  not  actionable.1 

d.  Baiudy  House. — Your  house  is  no  better  than  a  bawdy- 

house,  is  equivalent  to  charging  that  the  party  kept  a 
bawdy-house ; 2  but  public-house,  or  house  of  ill-fame, 
cannot  be  so  construed.3  Whore-house  is  equivalent 
to  bawdy-house,  or  house  of  ill-fame.4 

e.  Bigamy. — The  words  "he  was  married  to   a  woman 

(naming  her),  and  kept  her  till  he  got  sick  of  her, 
and  then  sent  her  away,  having  all  this  time  two 
wives,"  amount  to  a  charge  of  bigamy.5 

f.  Blackleg. — The  term  blackleg  does  not  necessarily  mean 
a  cheating  gambler.6 

g.  Clipper. — Where  the  words  were,  Thou  art  a  clipper, 
and  shall  be  hanged  for  it,  or,  Thou  art  a  clipper,  and 
thy  neck  shall  pay  for  it, — it  was  held  that  the  word 
clipper,  taken  in  connection  with  the  words  which 
followed  it,  meant  a  clipping  of  money — a  felony.7 

li.  Conspiracy. — A  libel  which  was  alleged  to  be  concern- 
ing a  false  charge  of  felony,  made  through  feelings  of 
religious  bigotry,  by  the  plaintiff  against  one  D.  S., 
went  on  to  allege  that  plaintiff  was  aided  in  making 

1  Jackson  v.  Greer,  1  Law  Reporter,  5.     (London,  1821.) 

2  Huckle  v.  Reynolds,  V  C.  B.  (N.  S.)  114. 

3  Dodge  v.  Lacey,  2  Carter  (Ind.)  212.  House  of  ill-fame  means  the  house  is  one 
of  bad  reputation,  not  that  it  is  a  bawdy-house,  unless  there  is  an  inducement  that 
the  defendant  was  in  the  habit  of  using  the  words  "  house  of  ill-fame,"  to  convey  the 
idea  of  "  bawdy-house."     (Id.) 

4  Wright  v.  Paige,  36  Barb.  438 ;  affd  Co't  of  Appeals,  3  Trans.  App.  134. 
6  Parker  v.  Header,  32  Verm.  (3  Shaw)  300. 

6  Barnett  v.  Allen,  3  Hurl.  &  N.  376;  1  Fos.  &  F.  125. 

7  Walter  v.  Beaver,  3  Lev.  166 ;  Cro.  Jac.  255,  276;  1  Lev.  155. 


§  144.]  CONSTRUCTION    OF   LANGUAGE.  189 

said  charge  by  one  C.  R.,  who  were  stated  to  "  have 
been  for  some  time  back  employing  every  means  to 
win  the  confidence  of  this  young  gentleman,  their  in- 
tended victim  (meaning  thereby  that  plaintiff  and 
said  C.  R.  had  been  contriving  some  plan  to  assail  the 
character  of  said  D.  S.),  as  taking  him  on  country 
visits,  and  inviting  him  to  the  continent,  with  the 
hope,  it  is  alleged,  of  getting  him  altogether  to  them- 
selves, and  destroying  his  prospects  the  more  easily, 
by  some  foul  charge,  which  he  might  not  find  means 
of  contradicting,  there  being  no  one  else  of  the  com- 
pany. They  had  met  with  a  direct  refusal,  it  seems, 
to  their  invitation  to  the  continent,  and  therefore, 
rather  prematurely,  opened  their  present  plot  (mean- 
ing said  charge  of  felony).  Affidavits  are,  we  under- 
stand, shortly  to  be  laid  before  the  law  officers  of  the 
Crown,  charging  the  above  facts,  together  with  cer- 
tain conversations  between  the  pair  of  Romanists, 
who  have  trained  this  ingenious  manoeuvre  (meaning 
the  charge  of  felony  aforesaid)."  Held  that  the  lan- 
guage did  not  amount  to  a  charge  of  conspiracy.1 

i.  Convicted  Felon. — Plaintiff  having  been  convicted  of 
selling  liquor  in  violation  of  law,  was  termed  in  a 
printed  circular  a  "  convicted  felon  /  "  held  that  if  these 
terms,  taken  in  connection  with  the  context  and  the 
evidence,  were  understood  to  mean  only  an  offender 
against  the  license  law,  they  were  no  cause  of  action.2 

;'.  Embracery. — Saying  that  A.,  on  a  certain  trial,  handed 
papers  to  one  of  the  jury,  and  that  he  ran  away,  or 
the  judge  would  have  put  him  in  prison  for  it, — or 
that  he  handed  papers  to  the  jury  to  influence  or 
bribe  them, — imputes  embracery,  and  is  actionable 
per  se.8 

1  0'Connell>.  Mansfield,  9  Irish  Law  R.  179. 

2  Perry  v.  Mann,  1  Rhode  Island,  263. 

3  Gibbs  v.  Dewey,  5  Cow.  503. 


190  CONSTRUCTION    OF    LANGUAGE.  [Gil.  VII. 

Jc.  Forgery. — The  term  forgery  does  not  necessarily  mean 
a  felonious  forgery,1  as  to  say  one  forged  words  and 
sentiments  for  Silas  Wright;2  and  to  deny  having 
signed  a  note,  or  authorized  his  name  being  in- 
dorsed, does  not  import  a  charge  of  forgery;3  nor 
does  a  charge,  if  yon  have  any  letters  from  them,  you 
forged  them ; 4  or,  I  never  put  my  name  on  the  back 
of  the  note,  but  he  must  have  done  it.5  A  charge  of 
altering  books  may  impute  forgery.6  Exhibiting  a 
note  and  saying,  "  Do  you  think  it  is  Gr.'s  hand- 
writing," may  import  a  charge  of  forgery ; 7  and  so 
the  words,  "  He  altered  the  note  to  get  better  security, 
to  bind  me  to  pay  it.8  The  words,  I  would  give  five 
dollars  if  I  could  write  as  well  as  that, — I  never 
signed  the  note,9  do  not  necessarily  impute  forgeiy. 
But  a  letter  charging  plaintiff  with  having  subscribed 
defendant's  name  to  a  receipt  without  authority,  and 
to  defraud  him  out  of  the  money,  and  adding,  It  is 
not  my  purpose  to  call  hard  names — the  statute  fixes 
.  the  name  and  punishment,  imputes  forgery.1" 

I.  Fornication. — To  allege  that  a  woman  is  not  a  decent 
woman,11  or  a  bad  character,  a  loose  character,1'2  or  has 
raised  a  family  of  children  to  a  negro,  does  not 
amount  to  a  charge  of  fornication  ; 13  but  to  say  of  an 
unmarried  woman,  she  had  a  child  and  buried  it  in 


1  Alexander  v.  Alexander,  9  Wend.  141.     See  §  167,  post. 

2  Cramer  v.  Noonan,  4  Wis.  231. 

8  Andrews  v.  Woodmansee,  15  Wend.  232. 

4  Mills  v.  Taylor,  3  Bibb,  469. 

6  Atkinson  v.  Scamrnon,  2  Fost.  40. 

6  Gay  v.  Homer,  13  Pick.  535. 

7  Gorham  v.  Ives,  2  Wend.  534. 

8  Harmon  v.  Carrington,  8  Wend.  488. 

9  Andrews  v.  Woodmansee,  15  Wend.  232. 

10  Snyder  v.  Andrews,  6  Barb.  43. 

11  Dodge  v.  Lacey,  2  Carter  (lnd.),  212. 

12  Vanderbp  v.  Roe,  25  Penn.  St.  Rep.  (11  Harris),  82. 

13  Patterson  v.  Edwards,  2  Gilman,  720. 


§  144.]  CONSTRUCTION    OF   LANGUAGE.  191 

the  garden,  imputes  fornication.1  To  say  "  Malvina 
(plaintiff)  has  been  to  swear  a  young  one,"  fairly  con- 
veys the  idea  that  the  plaintiff  had  been  guilty  of 
fornication.2  So  do,  with  proper  innuendoes,  the 
words  "  A.  caught  them  (plaintiff  and  B.)  together  in 
the  packing-room." 3  "  There  is  no  offense  which  can 
be  conveyed  in  so  many  multiplied  forms  and  figures 
as  that  of  incontinence.  The  charge  is  seldom  made, 
even  by  the  most  vulgar  and  obscene  in  broad  and 
coarse  language." 4 

m.  Kill — Killed — Killing. — The  words  kill,  killed,  and 
killing,  unexplained,  have  a  felonious  signification.5 
The  words,  "  I  think  the  business  ought  to  have  the 
most  rigid  inquiry,  for  he  murdered  his  first  wife, 
that  is,  he  administered  improperly  medicines  to  her 
for  a  certain  complaint,  which  was  the  cause  of  her 
death,"  after  verdict  for  plaintiff,  held  actionable  as 
imputing  a  charge  of  manslaughter.6 

n.  Knave. — Imports  dishonesty.7 

o.  Known. — Stating  plaintiff  is  about  to  commence  an 
action,  but  that  he  will  not  bring  it  to  trial  in  a  par- 
ticular county  because  he  is  known  there,  amounts  to 
a  charge  that  the  plaintiff  is  in  bad  repute  in  that 
county.8 

1  Worth  v.  Butler,  7  Blackf.  251.  See  §  172,  post.  Scandalcms  and  familiar  con- 
verse with  a  woman  can  only  mean  illegal  connection.  (Patterson  v.  Patterson,  15 
Law  Times,  539.) 

2  Patterson  v.  Wilkinson,  55  Maine,  42. 

3  Evans  v.  Tibbins,  2  Phila.  210. 

4  Duncan  J.  Walton  v.  Singleton,  7  S.  &  ft.  457. 

5  Carroll  v.  White,  33  Barb.  620;  Button  v.  Hayward,  8  Mod.  24;  Cooper  v. 
Smith,  Cro.  Jac.  423;  Hays  v.  Hays,  1  Hump.  (Tenn.)  402;  Taylor  v.  Casey,  Minor 
(Ala.),  258  ;  Ecart  if.  Wilson,  10  Ser.  &  R.  44 ;  Johnson  v.  Robertson,  4  Porter,  486; 
Chandler  v.  Holloway,  id.  18;  Edsall  v.  Russell,  5  Scott,  N.  R.  801;  2  Dowl.  N.  S. 
614;  4  Man.  &  G.  1090. 

6  Ford  v.  Primrose,  5  Dowl.  &  R.  287.     See  §  L68,  post 
'  Harding  v.  Brooks,  5  Pick.  244.     See  §  173,  post, 

9  Cooper  v.  Greely,  1  Denio,  347. 


192  CONSTRUCTION    OF   LANGUAGE.  [Ch.  VIL 

p.  Lcvrceny. — The  words,  A  man  that  would  do  that  would 
steal,  do  not  impute  a  larcency ; 1  but  to  say  one  was 
whipped  for  stealing  hogs,  does.2  You  will  steal,  im- 
putes a  charge  of  larceny.3  The  words  "  he  is  mighty 
smart  after  night,"  and  "  put  him  in  the  dark,  and  he 
would  get  it  all,"  spoken  with  reference  to  a  dispute 
which  existed  "between  plaintiff  and  defendant,  rela- 
tive to  the  division  of  a  certain  tan-yard ;  held  not  to 
impute  the  crime  of  larceny,  and  not  actionable.4  I 
have  reason  to  suppose  that  many  of  the  flowers  of 
which  I  have  been  robbed  are  growing  on  your 
premises,  held  to  amount  to  a  charge  of  larceny.5  The 
words,  "  my  table-cloths  are  gone,  and  you  know 
where  they  are  gone.  If  you  will  bring  them  back,  I 
will  say  nothing  about  it.  My  husband  has  gone 
down  town  to  get  a  warrant  to  search  your  house 
and  imprison  you,"  impute  a  crime.6 

q.  Liar. — The  words,  "  this  is  not  the  first  time  the  idea 
of  falsehood  and  B.  (plaintiff)  have  been  associated 
in  the  minds  of  many  honest  men,"  import  that  B. 
is  a  liar.7 

t.  Made  a/way  with. — A  charge  of  making  away  with  does 
not  amount  to  a  charge  of  larceny.8 

s.  Murder. — To  say  one  is  guilty  of  the  death  of  another 
imports  a  charge  of  murder.     The  word  guilty  im- 

1  Stees  v.  Kemble,  27  Penns.  112;  and  see  Stolen,  p.  195,  post. 

2  Holly  v.  Burgess,  9  Ala.  728. 

3  Cornelius  v.  Van  Slyck,  21  Wend.  70. 

4  Kirksey  v.  Fike,  29  Ala.  206. 

6  "Williams  ;•.  Gardiner,  1  M.  &  W.  245  ;  and  see  note  2,  p.  174,  ante. 

6  Hess  v.  Jockley,  25  Iowa,  9. 

7  Brooks  v.  Bemiss,  8  Johns.  455. 

h  The  words,  "  Uncle  Daniel  must  settle  for  some  of  my  logs  he  has  made  away 

with,"  do  not  of  themselves  amount  to  a  charge  of  larceny.     (Brown  v.  Brown,  2 

Shep.  317.)    A  charge  of  carrying  away  corn  does  not  impute  felony,  but  trespas  s 

(Stitzell  v.  Reynolds,  59  Penns.  488.)     Go  home  and  steal  more  potatoes  from  Peggy's 

field,  held  actionable.     (Hunter  v.  Hunter,  25  Up.  Can.  Q.  B.  145.) 


§  144.]  CONSTRUCTION    OF   LANGUAGE.  193 

plies  a  malicious  intent,  and  can  be  applied  only  to 
something  which  is  universally  allowed  to  be  a  crime. 
But  to  say  one  was  the  cause  of  another's  death  does 
not  import  a  crime,  for  a  physician  may  be  the  cause 
of  a  man's  death,  and  very  innocently.1 

t  Packing. — The  charge  of  "  packing  a  jury  "  imports  the 
corrupt  selection  of  a  jury.2 

u.  Perjury. — To  publish  a  direct  and  positive  contradic- 
tion of  what  a  witness,  at  a  certain  trial,  had  sworn 
that  A.  had  said  ;  Jield,  not  to  amount  to  a  charge  of 
perjury.3  Nor  do  the  words,  Thou  wert  detected  of 
perjury,  imply  being  guilty  of  perjury.4  Words 
charging  a  grand  juror  with  having  "  forsworn  him- 
self by  neglecting  or  refusing  to  present  an  offense 
within  his  knowledge,"  do  not  amount  to  a  charge  of 
perjury,  or  any  indictable  offense.5  To  say  one  is 
forsworn,  was  indicted  for  it,  and  compounded  for  it, 
imputes  perjury;  for  the  alleged  compounding  is 
equivalent  to  a  confession  of  the  indictment  being 
true.6  And  to  say,  Thou  art  forsworn,  and  I  will 
set  thee  on  the  pillory,  or  I  will  have  his  ears  cropt, 
imply  perjury.7  Loss  of  life  was  occasioned  by  the 
collision  of  two  steamboats.  An  inquest  was  after- 
wards held,  and  a  person  named  Granger,  who  was 


'Peake  v.  Oldham,  Cowp.  275;  Miller  v.  Buckdon,  2  Bulst.  10.  See  §  168,. 
post. 

2  Mix  v.  Woodward,  12  Conn.  262. 

3  Steele  v.  Sonthwick,  9  Johns.  214.  See  post  in  note  to  §  171 ;  Perselly  v.  Bacon, 
20  Miss.  330;  Kern  v.  Towsley,  51  Barb.  385. 

*  Vin.  Abr.,  Act.  for  Words,  P.  a.  21.  The  words,  Thou  didst  take  a  false  oath  be- 
fore Justice  Scawen,  may  mean  not  a  justice  of  the  peace  named  Scawen,  but  one 
named  Justice  Scawen.  (Garnett  v.  Derry,  3  Lev.  166),  note  to  g  177,  post;  and 
Call  v.  Foresman,  5  Watts,  331  in  §  321,  post. 

6  McAnnally  v.  Williams,  3  Sneed,  26. 
c  Gilberd  v.  Rodd,  3  Bulst.  304. 

7  Williams  v.  Bickerton,  Het.  63 ;  Vin.  Abr.,  Act.  for  Words,  F.  a.  11.  "I  could 
prove  J.  S.  perjured,  if  I  would"  implies  that  J.  S.  committed  perjury.     (/</.) 


194  construction  of  language.  [Ch.  VII. 

on  board  of  one  of  the  steamboats  at  the  time  of  the 
accident,  gave  his  evidence.  The  defendant,  in  giv- 
ing an  account  of  the  accident  and  inquest,  stated — 
"  Had  requisite  means  been  employed,  the  lives  of 
the  two  children  might  have  been  saved,  in  spite  of 
the  story  of  Mr.  Granger,  who  swore  through  thick 
and  thin,  and  who,  although  asleep  at  the  moment  of 
the  accident,  had  yet  sufficient  time  to  dress  himself 
and  assist  his  wife : "  held,  that  the  lano-uas-e  did  not 
charge  Granger  with  perjury.1  The  following  was 
published  by  A. :  "  Charge  4.  Refusing  to  correct 
G.  C.  in  his  statement  as  a  witness  before  Esq.  B., 
when  I  believe  he,  J.  C,  knew  his,  G.  C.'s  statement, 
was  not  true."  Held,  that  this  writing,  when  shown 
by  proper  innuendoes  to  have  been  applied  by  A.  to 
the  testimony  of  G.  C,  on  the  trial  of  a  cause,  im- 
puted perjury  to  G.  C,  and  was  actionable.2 

v.  Pilfering. — The  term  pilfering  imports  a  crime.3 

w.  Plundered. — The  term  plundered  does  not  import  a 
felonious  taking.4 

x.  Poison. — Saying  of  a  surgeon  that  he  did  poison  the 
wound  of  his  patient,  may  mean  that  he  poisoned  the 
wound  to  cure  it.  But  if  it  be  charged  that  he 
poisoned  the  wound  to  get  money,  that  is  different.5 

y.  Prostitute. — She  is  a  bad  girl,  and  unworthy  to  be  em- 
ployed, will  not  support  an  innuendo,  a  prostitute.6 
"  If  I  am  not  misinformed,  she  is  a  prostitute,"  is  the 
same  as  saying  she  is  a  prostitute.7 

.z.  Pobbed — Robbing. — The  'prima  facie  meaning  of  rob- 

1  Reg.  v.  Marshall,  2  Jur.  254;  and  see  note  to  §  137,  ante. 

2  Coombs  v.  Rose,  8  Blackf.  155. 

3  Beckett  v.  Sterrett,  4  Blackf.  499 ;  contra,  see  Carter  v.  Andrews,  16  Pick.  1. 

4  Carter  v.  Andrews,  16  Pick.  1. 

5  Vin.  Abr.,  Act.  for  Words,  R.  a.  10,  40. 
c  Snell  v.  Snow,  13  Met.  278. 

"*  Treat  v.  Browning,  4  Conn.  408. 


§  144.]  CONSTRUCTION    OF   LANGUAGE.  195 

bed  is  to  impute  a  crime,  an  unlawful  taking ; 1  but 
the  words,  You  have  robbed  me  df  one  shilling  tan 
money,  amount  only  to  a  charge  of  embezzlement.2 
Robbing:  is  a  word  of  an  uncertain  signification.3  The 
words,  "  He  robbed  the  treasury,  and  bought  a  farm 
with  it,"  were  held  not  to  impute  felony.4 

a.  a.  Shaving  Pwrposes. — Shaving,  as  applied  to  promis- 
sory notes,  means  buying  notes  at  a  discount,  beyond 
the  debt  and  interest,  which  is  neither  dishonorable 
nor  discreditable.5 

h.  h.  Steal — Stolen. — The  natural  and  obvious  meaning  of 
steal  is  a  felonious  taking  or  larceny.6  The  term 
stolen  imputes  a  larceny.7  Stealing  unexplained,  ex  vi 
termini,  imports  felony.8  Stealing  and  feloniously 
stealing  are  not  the  same ;  in  common  parlance,  steal- 
ing does  not  always  import  felony.9  If  the  article  al- 
leged to  have  been  stolen  is  of  the  kind  of  which 
felony  can  be  committed,  the  term  steal  or  stolen  im- 
putes a  larceny,  otherwise  if  the  article  alleged  to 
have  been  stolen  could  not  be  the  subject  of  a  felony.10 
Thus  it  has  been  held  not  actionable  to  say,  You 
stole  my  wood,11  or  my  apples ; 12  or  a  load  of  hop- 

1Tomlinsou  v.  Brittlebank,  1  Nev.  &  M.  455;  Jones  v.  Chapman,  5  Blackf.  88; 
Heard  on  Libel,  §  38. 

2  Day  v.  Robinson,  1  Ad.  &  El.  554. 

3  Palmer  v.  Edwards,  Rep.  of  Cas.  of  Prac.  in  C.  P.  160. 

4  Allen  v.  Hillman,  12  Pick.  101.  The  words  "You  did  rob  the  town  of  St.  Cloud  ; 
you  are  a  public  robber,"  are  not  actionable,  for  the  crime  of  robbery  cannot  be  com- 
mitted against  a  town.     (McCarty  v.  Barrett,  12  Minn.  494.)     See  §  170,  post.      • 

6  Stone  v.  Cooper,  2  Denio,  293. 

8  Dunnell  v.  Fiske,  11  Mete.  551.     See  §  170,  post. 

7  Burbank  v.  Horn,  39  Maine  (4  Heath),  233  ;  Coleman  y.  Playsted,  36  Barb.  26  ; 
contra,  Dunnell  v.  Fiske,  11  Mete.  551;  St.  Martin  v.  Desnoyer,  1  Min.  156. 

8  Powell,  J.,  Baker  v.  Pierce,  6  Mod.  23. 

9  Holt,  Ch.  J.,  Baker  v.  Pierce,  6. Mod.  23. 

10  Cock  v.  Weatherby,  5  Sme.  &  M.  333.     See  note  p.  173,  ante. 

11  Meaning  standing  timber.  Robins  v.  Hildredon,  Cro.  Jac.  65  ;  Idol  v.  Jones,  2 
Dev.  162;  Heard  on  Libel,  37,  note  3;  contra,  Phillips  v.  Barber,  7  Wend.  489. 

,2  Clark  v.  Gilbert,  Hob.  331. 


196  construction  of  language.  [Cli.  VII. 

poles;1  or  a  tree;2  or  a  dog;3  or  a  bee-tree;4  or 
wild  bees ; 5  o»r  a  sable  caught  in  a  trap ; 6  or  marl, 
earth,  or  furze ; T  because  felony  cannot  be  committed 
of  such  thing's.  A  charge  of  having;  stolen  boards,8 
or  "  my  box- wood," 9  held  to  impute  a  larceny ;  and  a 
charge  of  stealing  the  property  of  A.,  deceased,  im- 
ports a  larceny  from  the  personal  representatives  of 
A.10  He  will  steal,  and  I  can  prove  it,  is  equivalent 
to  saying  he  had  stolen ;  n  and  to  allege,  I  will  ven- 
ture anything  he  has  stolen  the  book,  is  equivalent 
to  a  charge  of  stealing  the  book.12  To  say,  You  are 
as  bad  as  your  wife  when  she  stole  my  cushion,  is 
not  a  charge  of  stealing,  without  an  averment  that 
the  wife  had  committed  felony.18 

c.  c.  Suffer. — To  suffer,  held  to  import  suffer  death,  as 

where  the  defendant  said,  "  I  will  make  you  suffer 
for  a  witch,1'  it  was  held  to  mean  suffer  death  for  a 
witch.14 

d.  d.  Taken. — Words  which  charge  the  taking  of  the  per- 

sonal property  of  another,  may  be  slanderous  or  not, 

1  Guilderslew  v.  Ward,  Cm  Eliz.  225;  Dexter  v.  Taber,  12  Johns.  239. 

2  Cook  v.  Gilbert,  Hob.  77.     See  Bryan  v.  Wikes,  Cro.  Car.  572. 

3  Findlay  v.  Bear,  8  Serg.  <fc  R.  571. 

4  Cock  v.  Weatherby,  5  Sme.  &  M.  333. 

5  Wallis  v.  Mease,  3  Binn.  546 ;  Gillet  v.  Mason,  7  Johns.  16. 

6  Norton  v.  Ladd,  5  N.  Hamp.  203. 

7  Ogden  v,  Riley,  2  Green,  186;  Clarke  v.  Gilbert,  Hob.  331. 
b  Burbank  v.  Horn,  39  Maine  (4  Heath),  233. 

9  After  verdict  for  plaintiff.     Baker  v.  Pierce,  6  Mod.  23. 

10  Bash  v.  Sotnmer,  20  Penn.  St.  R.  159. 

11  Cornelius  v.  Van  Slyck,  21  Wend.  70. 
13  Nye  v.  Otis,  8  Mass.  122. 

18  Upton  v.  Pinfold,  Comyn's  R.  268.  The  words,  "  I  expect  Murphy  -will  have 
plenty  of  bacon  to  sell,  as  he  has  killed  some  of  my  hogs,"  after  verdict  for  plaintiff, 
were  held  to  amount  to  a  charge  of  hog-stealing.  (Murphy  v.  Antley,  2  Boston 
Monthly  Law  Rep.  N.  S.  520.)  R.  S.  was  attainted  of  felony,  and  defendant  said, 
You  (plaintiff)  have  done  as  ill  and  worse ;  it  will  not  cost  you  as  much  to  be  quit  as 
it  cost  him.     Court  doubted  if  actionable.     (Smith's  Case,  Cro.  Eliz.  31.) 

34  Stephens  v.  Corben,  3  Lev.  394. 


§  144.]  CONSTRUCTION    OF    LANGUAGE.  197 

according  to  circumstances.1  Ordinarily,  taken  is  not 
equivalent  to  stolen ; 2  but  where  the  words  were,  I 
have  lost  a  calf-skin,  *  *  Bornnian  must  have 
taken  it,  they  were  held  to  impute  a  larceny.3 

e.  e.  Thief. — To  call  one  thief  is  not  actionable,  unless  it 

is  intended  to  impute  to  him  a  felony.4  Unexplained, 
it  will  be  construed  in  a  felonious  sense,5  but  subject 
to  explanation  by  the  context.6  To  say  of  one,  he  is 
a  thieving  person,7  or  "  he  gets  his  living  by  thieving," 8 
is  the  same  as  saying  he  is  a  thief. 

f.  f.  Threatening  Letters. — A  charge  of  sending  threaten- 

ing letters,  and  that  the  plaintiff  had  been  indicted 
therefor,  must  mean  that  they  were  unlawful  threat- 
ening letters.9 

1  Watson  v.  Nicholas,  6  Hump.  1*74. 

a  Robertson  v.  Lea,  1  Stew.  141 ;  Coleman  v.  Playstead,  36  Barb.  26.  The 
words,  Thou  hast  picked  my  pocket,  and  taken  away  ten  shillings,  held  not  actionable, 
although  the  charge  of  picking  the  pocket  without  more  would  be.  (Humfries'  Case, 
cited  Godb.  287.)  Taking  away  implies  a  lawful  taking.  (Foster  v.  Browning,  Cro. 
Jac.  688,  pi.  2;  Wilks'  Case,  Vin.  Abr.,  Act.  for  Words,  R.  a.  3);  see  Dottarer  v. 
Bushey,  16  Penn.  204. 

8  Borninan  v.  Boyer,  3  Binn.  515.  He  is  a  thief,  for  he  hath  stolen  corn  from  Mr. 
Kay,  held  actionable  (Smith  v.  Ward,  Cro.  Jac.  673),  for  corn  threshed,  and  not  in 
the  sheaf,  shall  be  intended ;  but  if  the  words  had  been  hath  taken  away,  instead  of 
hath  stolen,  no  action  would  lie — a  lawful  taking  would  be  intended.  (Foster  v. 
Browning,  Cro.  Jac.  688,  pi.  2);  see  Lukehart  v.  Byerly,  53  Penns.  418.)  Thou  art  as 
arrant  a  thief  as  any  in  England,  for  thou  hast  broken  up  J.'s  chest,  and  taken  away 
£40;  not  actionable.  (Id.)  Thou  art  a  thief,  for  thou  takest  my  beasts  by  reason  of 
an  execution,  and  I  will  hang  thee.  (Wilks'  Case,  Vin.  Abr.,  Act.  for  Words,  R. 
a.  3.) 

4  Brite  v.  Gill,  2  Monroe  (Ky.),  66  ;  Quinn  v.  O'Gara,  2  E.  D.  Smith,  388. 

5  Penfold  v.  Westcote,  2  New  Rep.  335  ;  Curtis  v.  Curtis,  10  Bing.  477;  Fisher  v. 
Rotereau,  2  M'Cord,  189;  Dudleys.  Robinson,  2  Iredell,  141.  The  words,  He  is  a 
thief  and  a  liar,  and  I  can  prove  it,  import  a  charge  of  larceny,  and  are  actionable. 
(Robinson  v.  Keyser,  2  Foster  (N.  Hamp.),  323.) 

8  Thompson  v.  Bernard,  1  Camp.  48  ;  Christie  v.  Powell,  Peake's  Cas.  4 ;  McKee  v. 
Ingalls,  4  Scam.  30;  Ogden  v.  Riley,  2  Green,  186 ;  Vin.  Abr.,  Actions  for  Words,  G. 
a.  1,  2.  To  say,  "  Thou  art  as  very  a  thief  as  any  in  Warwick  gaol,"  no  thief  being 
then  in  the  gaol,  would  not  be  actionable,  but  if  a  thief  is  in  the  gaol  at  the  time  the 
words  would  be  actionable.     (Fenner,  J.,  1  Bulst.  40.) 

7  Alley  v.  Neely,  5  Blackf.  200. 

8  Rutherford  v.  Moore,  1  Cr.  C.  C.  388. 

'  Harvey  v.  French,  1  Cr.  &  M.  1,  aff'd  2  M.  &  Sc.  591.  "  Threatening  letters.  The 


198  CONSTRUCTION    OF    LANGUAGE.  [Ch.  VII. 

g.  g.  Unnatural  Offense. — To  allege  that  one  has  been 
with  a  beast,1  was  seen  ravishing  a  cow,  amounts  to  a 
charge  of  buggery ; 2  but  an  allegation  that  one  was 
seen  a  fouloi  a  cow,  or  "with  a  heifer,"3  do  not 
amount  to  a  charge  of  buggery.  To  say  of  one,  his 
character  is  infamous,  he  would  be  a  disgrace  to  any 
society ;  I  will  publish  his  infamy ;  delicacy  forbids 
me  bringing  a  direct  charge,  but  it  was  a  male  child 
who  complained  to  me ;  held  to  impute  unnatural 
practices  without  an  innuendo.4  * 

It.  h.  Whore. — To  assert  that  "  A.  is  a  whore,  or  else  she 
would  never  ride  with  B.,"  is  to  assert  that  A.  is  a 
whore.5 

i.  i. — To  say,  there  is  strong  reason  to  believe,6  or  there  is 
a  rumor,1  or  if  report  be  time,8  a  certain  fact  occurred, 
is  equivalent  to  an  allegation  that  such  fact  occurred ; 
and  so  to  say,  I  would  venture  anything,9  or  public 
opinion  says  so,  and  what  public  opinion  says  I  believe 
to  be  true,10  or  I  have  every  reason  to  believe,11  is 
equivalent  to  a  positive  allegation.  But  the  words 
"  Sparkham  did  steal  or  else  Godwin  is  forsworn,  was 
held  too  indirect  a  charge  to  give  a  right  of  action,12 


grand  jury  have  returned  a  true  bill  against  a  gentleman  named  French,"  con- 
strued to  mean  that  the  grand  jury  had  found  a  true  bill  against  French  for  sending 
threatening  letters,  but  that  the  words  would  not  bear  the  meaning  that  French  had 
sent  threatening  letters  to  extort  money.     {Id.) 

1  Woolcott  v.  Goodrich,  5  Cow.  714. 

2  Harper  v.  Delph,  3  Ind.  225. 

3  Id.  ;  Johnson  v.  Hedge,  6  Up.  Can.  Q.  B.  Rep,  331 

4  Woolnoth  v.  Meadows,  5  East,  463.     See  note  1,  on  page  168,  ante. 

5  True  v.  Plumley,  36  Maine,  466.     "  E.  P.  was  one  week  in  L.  in  a  whore-house," 
implies  a  charge  of  whoredom  (Blickenstaff  v.  Perrin,  2*7  Ind.  527.) 

6  Turner  v.  Merryweather,  12  Law  Times,  474;  7  C.  B.  251. 

7  Kelly  v.  Dillon,  5  Porter  (Ind.),  426. 

8  Smith  v.  Stewart,  5  Barr,  372 ;  Johnson  v.  Brown,  57  Barb.  118. 

9  Nye  v.  Otis,  8  Mass.  122. 

30  Gage  v.  Shelton,  3  Rich.  242 ;  and  see  note  8,  p.  187,  ante. 
11  Logan  v.  Steele,  1  Bibb,  593  ;  and  see  note  9,  p.  187,  ante. 
"  1  StarMe  on  Slan.  70. 


§  145.]  CONSTRUCTION   OF   LANGUAGE.  190 

so  of  the  allegation  she  had  a  child,  and  either  she  or 
some  one  else  made  away  with  it.1 

j.  j. — To  say  of  one,  he  is  thought  no  more  of  than  a  horse- 
thief  and  a  counterfeiter,  is  to  call  him  a  horse-thief 
and  a  counterfeiter ; 2  and  when  it  said  of  one,  he  has 
committed  an  act  for  which  he  could  be  transported, 
it  must  be  understood  he  has  been  guilty  of  a  crime 
punishable  by  transportation.3 

h  "k. — To  charge,  he  has  broken  open  my  letters  in  the 
post-office,  do  not  import  an.  unlawful  breaking  open.4 

1.  I. — Thou  canst  not  read  a  declaration,  construed  to  mean 
from  ignorance,  not  blindness.5 

m.  m. — The  words  "we  again  assert  the  cases  formerly 
put  by  us  on  record,  we  assert  them  against  [the 
plaintiff]  ;  we  again  assert  they  are  such  as  no  gentle- 
man or  honest  man  would  resort  to."  Construed 
not  to  be  a  mere  denial  of  some  assertion  made  by 
plaintiff,  but  as  an  accusation  against  the  plaintiff.6 

n.  n. — "  He  was  an  United  Irishmen,  and  got  the  money  of 
the  United  Irishmen  into  his  own  hands  and  ran 
away  with  it,"  imputes  a  breach  of  trust,  not  a 
felony,  and  not  actionable.7 

§  145.  What  allegations  are  divisible?  One  rule 
whereby  to  test  whether  a  charge  is  divisible  or  not,  is  to 
inquire  if  the  measure  of  damages  would  be  different  for 
the  whole  or  for  a  part ;  and  if  it  would,  then  the  charge 

1  Carth.  55.  The  words  thy  brother  was  whipped  for  stealing  sheep,  or  burned 
in  the  hand  or  shoulder,  held  too  uncertain  to  warrant  an  action,  as  one  could  not  be 
burned  in  the  shoulder  for  stealing  sheep.     (Stirley  v.  Hill,  Cro.  Car.  283.) 

2  Nelson  v.  Musgrave,  10  Mo.  R.  649. 

3  Curtis  v.  Curtis,  4  Mo.  <fe  S.  337  ;  10  Bing.  477. 
*  McCuen  v.  Ludlam,  2  Har.  12. 

6  Powell  v.  Jones,  1  Lev.  297. 
6  Hughes  v.  Rees,  4  M.  &  W.  204. 

7McClurg  v.  Ross,  5  Binn.  218;  and  see  Caldwell  v.  Abbey,  Hardin,  529;  Huron 
v.  Smith,  4  B.  Monr.  385. 


200  CONSTRUCTION   OF   LANGUAGE.  [Ch.  VII. 

is  divisible,  and  part  may  be  justified.1  Another  rule 
would  be  to  inquire  if  a  part  of  the  charge  would  sustain 
an  action.  Where  the  charge  was  that  the  plaintiff,  a 
proctor,  had  been  suspended  three  times  for  extortion,  held 
divisible,  and  that  the  defendant  might  justify  as  to  one 
suspension.2  Where  the  alleged  defamatory  matter  pro- 
fessed to  give  a  report  on  an  election  petition,  and  com- 
mented on  a  person,  bail  for  one  of  the  petitioners,  and 
stated  "  he  is  hired  for  the  occasion,"  held  divisible.3  The 
charge  was  acts  of  barbarity  to  a  horse,  and  "  beating  out 
one  of  his  eyes,  and  that  plaintiff  had  ordered  the  person 
having  charge  of  the  horse,  not  to  let  any  one  see  it," 
held  divisible.4  So  of  the  words ;  Ware,  hawk,  you  must 
take  care  of  yourselves  there,  mind  what  you  are  about ; 5 
and  where  the  charge  was  that  plaintiff  had  killed,  his 
adversary  in  a  duel,  and  that  a  portion  of  the  night 
preceding  the  duel  was  spent  in  practicing  with  a  pistol, 
held  to  be  divisible  allegations ; 6  and  where  the  charge 
was  that  the  plaintiff  had,  by  furious  driving,  caused  the 
death  of  a  person  and  then  commented,  in  terms  held 
to  be  actionable,  on  the  fact  of  the  plaintiff,  on  the  same 
evening,  attending  a  public  ball,  held  that  the  charges 
were  divisible ; 7  so  of  the  words,  she  is  a  forsworn  whore 
and  a  perjured  whore,8  and  Thou  are  a  roguish  knave  and 
a  thief.9  Where  the  charge  was  that  plaintiff  was  in 
prison  and  unable  to  pay  his  rent,  and  a  mere  man  of 

1  Clarkson  v.  Lawson,  6  Bing.  587  ;  Cooper  v.  Lawson.  1  Perr.  <feD.  15;  Churchill 
v.  Hunt,  2  B.  &  A.  685. 

2  Clarkson  v.  Lawson,  6  Bing.  587. 

3  Cooper  v.  Lawson.  1  Perr.  &  D.  15. 

4  Weaver  v.  Lloyd,  2  B.  &  Cr.  678 ;  4  D.  &  R.  230. 

5  Orpwood  v.  Barkes,  4  Bing.  261 ;  S.  C.  sub.  nom.  Orpwood  v.  Parkes,  12  Moore, 
492. 

6  Helsham  v.  Blackwood,  11  C.  B.lll ;  5  Eng.  Law  <fc  Eq.  R.  409. 

7  Churchill  v.  Hunt,  2  B.  &  A.  685 ;  1  Chit.  480. 
-  Wales  v.  Norton,  Hard.  7. 

9  Bailey  v.  Maynard,  2  Bulst.  134. 


§  145.]  CONSTRUCTION    OF   LANGUAGE.  201 

straw,  held  not  divisible,  but  one  charge  of  insolvency.1 
Allegations  of  time,  and  space,  and  number,  are  divisible.2 


1  Eaton  v.  Johns,  1  Dowl.  Pr.  C.  N.  S.  602. 

2  Monkman  v.  Shepherdson,  3  Perr.  &  D.  182;  11  Ad.  &  El.  411;  so  said  in 
argument,  Page  v.  Hatchett,  6  Law  Times,  218 ;  and  as  to  divisible  allegations,  see 
McGregors  Gregory,  2  Dowl.  Pr.  C  N.  S.  769;  11  M.  &  W.  289;  Nelson  v.  Patrick, 
3  C.  B.  772 ;  Mountney  v.  Watton,  2  B.  &  Ad.  673 ;  Tapley  v.  Wainwright,  5  B.  & 
Adol.  395,  cited,  Dunckle  v.  Wiles,  6  Barb.  523;  Vessey  v.  Pike,  3  C.  <fc  P.  512; 
Berry  v.  Adamson,  2  C.  &  P.  503  ;  O'Connell  v.  Mansfield,  9  Ir.  Law  R.  179 ;  Edwards 
v.  Bell,  1  Bing.  403;  Lewis  v.  Walter,  4  Dowl.  &  R.  810;  3  B.  &  Cr.  138;  Johns  v. 
Gittings,  Cro.  Eliz.  239;  Vin.  Abr.  Act.  for  Words,  F.  a,  43;  Heard  on  Libel,  286, 
note  2  and  4  M.  &  S.  548;  Chalmers  v.  Shackell,  6  C  &  P.  474. 


14 


CHAPTER  VIII. 


WHAT    LANGUAGE   IS    ACTIONABLE. 


Language  must  be  such  as  does  or  does  not  occasion  damage 
—  What  is  meant  by  actionable  per  se,  and  actionable  by 
reason  of  special  damage —  What  language  concerning  a 
person  as  such,  published  orally,  is  actionable  per  se — 
What  language  concerning  a  person  as  such,  published  in 
writing,  is  actionable  per  se —  Wliat  language  concerning 
one  in  an  acquired  capacity,  is  actionable  per  se —  What 
language  concerning  a  person  is  actionable  by  reason  of 
special  damage —  What  language  concerning  the  affairs 
of  a  person,  his  property  or  his  title  thereto,  is  actionable. 

§  146.  All  language  concerning  a  person  or  Lis  affairs, 
which,  as  a  necessary  or  natural  and  proximate  consequence, 
occasions  him  pecuniary  loss,  is  prima  facie  actionable  (§§ 
57,  59,  70).  Language  must  be  either  (1)  such  as  neces- 
sarily, in  fact,  or  by  a  presumption  of  evidence,  occasions 
damage  to  him  whom  or  whose  affairs  it  is  concerning,  or 
(2)  such  as  does  not  necessarily,  or  as  a  necessaiy  conse- 
quence, but  does  by  a  natural  and  proximate  consequence, 
occasion  damage  to  him  whom  or  whose  affairs  it  is  con- 
cerning,  or  (3)  such  as  neither  as  a  necessary  nor  as  a 
natural  and  proximate  consequence  occasions  damage  to 
him  whom  or  whose  affairs  it  is  concerning.1  The  loss 
which  ensues  as  a  " necessary  consequence"  is  termed  dam- 
age; the  loss  which  ensues  as  a  "  natural  and  proximate 
consequence"  is  termed  " special  damage.1''      One  and  the 


1  In  the  jurisprudence  of  Louisiana,  a  distinction  is  not  made  between  words, 
actionable  and  words  not  actionable,  as  the  basis  of  damages  in  a  suit  for  slander, 
where  no  special  damages  are  proved.     (Feray  v.  Foote,  12  La.  Ann.  894.) 


ACTIONABLE   LANGUAGE.  203 

same  set  of  words  may  both  necessarily  occasion  damage 
and  also  occasion  damage  as  a  natural  consequence. 

§  147.  Language  of  the  first  of  these  classes  is  com- 
monly termed  libellous  per  se,  or  actionable  per  se,  because 
its  publication  confers  a  prima  facie  right  of  action,  and 
is  prima  facie  a  wrong  without  any  evidence  of  damage 
other  than  that  which  is  implied  or  presumed  from  the 
fact  of  publication.  Probably  language  of  this  class 
might  more  correctly  be  termed  injurious  per  se,  or  lan- 
guage which  imports  damage. 

§  148.  The  publication  of  language  of  the  second  of 
these  classes  does  not,  per  se,  confer  a,  prima  facie  right  of 
action,  and  is  not,  per  se,  a  prima  facie  wrong.  It  confers 
a  right  of  action  only  in  those  cases  in  which,  as  a  natural 
and  proximate  consequence  of  the  publication,  loss 
(special  damage)  has  in  fact  ensued  to  him  whom  or 
whose  affairs  the  lano-ua^e  was  concerning. 

§  149.  The  publication  of  language  of  the  third  of 
these  classes  cannot  in  any  event  amount  to  a  wrong,  and 
cannot  in  any  event  confer  a  right  of  action. 

§  150.  We  attempted  to  explain  in  Chapter  IV.  that 
pecuniary  loss,  actual  or  presumed,  is  the  gist  of  the  action 
for  slander  or  libel,  and  we  stated  (pp.  101, 102)  the  basis, 
as  we  suppose,  of  the  distinction  between  words  action- 
able per  se  and  words  only  actionable  by  reason  of  special 
damage,  to  consist  solely  of  a  rule  of  evidence ;  the  rule  by 
which  courts  decide  what  words1  shall  be  considered  by 
their  publication  necessarily  to  occasion  pecuniary  loss  or 
damage.  The  courts,  while  exercising  this  power,  have 
failed  to  promulgate  a  formula  which  can  be  applied  with 


1  Words  mean  written  or  spoken  words  (Minter  v.  Stewart,  2  How.  (Mis.)  183), 
and  an  action  for  written  slander  may  be  an  action  for  "  slanderous  words  "  within 
the  Vermont  Judiciary  Act  (Parsons?;.  Young,  2  Verm.  434),  but  see  note  1,  p.  141,  ante. 
And  in  Hall  v.  Warner,  T.  24  Geo.  III.,  Tidd,  861,  held  that  an  action  for  libel  was 
not  within  statute  21  Jac.  I.,  ch.  16,  relating  to  actions  for  "slanderous  words." 


204  WHAT    ORAL   LANGUAGE  [Ch.  VJH. 

any  degree  of  certainty,  to  distinguish  the  cases  in  which 
damage  is  necessarily  implied,  from  the  cases  in  which 
no  such  implication  occurs,  and  in  which  to  give  a  right  of 
action  special  damage  must  be  proved. 

§  151.  As  the  injurious,  or  presumed  injurious  effect 
of  language  depends  upon  whether  (1)  the  language  con- 
cerns a  person  or  a  thing  (2)  or  the  person  as  such  or  in 
some  acquired  capacity,  or  (3)  in  certain  cases,  whether 
the  language  be  published  orally  or  by  writing,  it  will  be 
necessary  to  consider  the  topic  of  actionable  language 
under  the  following  heads : 

I. — What  language  concerning  a  person,  as  such,  pub- 
lished orally,  is  actionable  per  se. 

II. — What  language  concerning  a  person  as  such,  pub- 
lished in  writing,  is  actionable  per  se. 

HI. — What  language  concerning  one  in  an  acquired 
capacity  or  special  character,  as  in  a  business,  profession, 
or  office,  or  as  partner,  or  as  heir-at-law,  is  actionable  per 
se. 

IV. — What  language  is  actionable  by  reason  of  special 
damage. 

V. — What  language  concerning  things,  as  the  affairs 
of  a  person,  his  property,  or  his  title  thereto,  is  actionable. 

§  152.  What  language  concerning  a  person,  as  such, 
published  orally,  is  actionable  per  se  f  Although  it  has 
been  said  that  "The  law  of  England  defines  with  much 
greater  distinctness  than  is  usually  found  in  other  codes, 
the  limits  of  the  civil  action  for  oral  slander  in  the  ab- 
sence of  special  damage,"1  it  is  nevertheless  true  that 


3  Prelim.  Discourse  to  Starkie  on  Slander,  XXX.  (30),  note  v. ;  see  note  to  §  57, 
ante.  In  Scotland,  any  words  that  produce  "  uneasiness  of  mind "  are  said  to  be  ac- 
tionable. (Borthwick  on  Libel,  184,  note.)  But  words  merely  " uncivil"  are  not 
actionable.  In  Iceland,  to  say  of  a  gentleman  he  did  menial  labor  is  punishable. 
(Blackwood's  Magazine,  Feb'y,  1869.)  Mere  words  of  obloquy,  not  written,  are  not 
actionable.     (Johnson  v  Brown,  4  Cr.  G.  C.  235.) 


§  153.]  IS    ACTIONABLE.  205 

"  There  is  not  perhaps  so  much  uncertainty  in  the  law 
upon  any  subject,  as  when  words  shall  be  in  themselves 
actionable." *  "  The  line  of  demarcation  seems  never  to 
have  been  satisfactorily  defined," 2  and  is  "  more  satisfac- 
torily determined  by  an  accurate  application  of  the  prin- 
ciples upon  which  actions  on  the  case  for  words  depend, 
than  by  a  reference  to  adjudged  cases,  especially  those  in 
the  more  ancient  authors." 3  The  diversity  of  opinion  as 
to  what  words  should  be  treated  as  imputing  damage,  or 
actionable  per  se,  arose  from  a  wavering  in  the  minds  of 
the  judges  between  two  opposite  inconveniences.  The 
fear  of  encouraging  a  spirit  of  vexatious  litigation,  by  af- 
fording too  great  a  facility  for  this  species  of  action,  was 
contrasted  with  the  mischief  resulting  to  the  public  peace 
from  refusing  legal  redress ;  and  according  as  the  former 
or  latter  of  these  considerations  preponderated,  so  was  the 
rule  of  decision  rigid  or  relaxed.4 

CD 

§  153.  Several  of  the  States  provide  by  statute  what 
words  shall  be  actionable;  thus,  in  Mississippi,  Virginia, 
and  Georgia,  it  is  enacted  that  all  words  which  from  their 
usual  construction  and  common  acceptation  are  considered 
as  insults  and  lead  to  violence  and  breach  of  the  peace, 
shall  be  actionable.5  In  Tennessee,  imputing  adultery  or 
fornication,  or  calling  one  coward  or  poltroon  for  not 
fighting  a  duel,  is  actionable.  In  Arkansas  and  Illinois, 
to  impute  adultery,  fornication,  or  false  swearing,  or  hav- 
ing sworn  [or  affirmed  in  Illinois]  falsely  in  common 
acceptation,  whether  in  a  judicial  proceeding  or  not,  is 


1  Spencer,  J.,  Brooker  v.  Coffin,  5  Johns.  192. 

a  Borthwick  on  Libel,  5;  Lord  Holt  said  it  was  not  worth  while  to  be  learned  on 
the  subject.     Baker  v.  Pierce,  6  Mod.  24. 

3  1  Comyn's  Di^.  213,  note,  4th  edit. 

4  1  Starkie  on  Slander,  12. 

6  It  is  not  necessary,  to  support  an  action  under  these  statutes,  that  the  words 
should  have  been  spoken  in  the  presence  of  the  plaintiff.  (Scott  v.  Peebles,  2  Smedes 
&  Marsh.  646.) 


206  WHAT    OKAL   LANGUAGE  [Ch.  VIII. 

actionable.  In  Missouri,  to  impute  adultery  or  fornica- 
tion is  actionable.  In  Indiana,  to  impute  to  a  female 
incest,  fornication,  adultery,  or  whoredom,  or  to  impute  to 
any  one  incest,  or  an  infamous  crime  against  nature  with, 
man  or  beast,  is  actionable.  In  Florida,  a  charge  by  any 
citizen  of  that  State  against  another,  imputing  incest,  for- 
nication, or  adultery,  is  actionable.  In  North  Carolina, 
any  words  spoken  of  a  female  which  amount  to  a  charge 
of  incontinency,  are  actionable;  and  in  Maryland,  all 
words  tending  to  the  injury  of  the  reputation  for  chastity 
of  a  feme  sole,  are  actionable.1  In  Michigan,  willfully  to 
insult  or  indecently  to  annoy  any  female,  with  any 
obscene  or  indecent  word  or  act,  is  a  misdemeanor;  and 
in  New  York,2  "An  action  may  be  maintained  by  a 
female,  whether  married  or  single,  to  recover  damages  for 
words  hereafter  spoken,  imputing  unchastity  to  her,  and 
it  shall  not  be  necessary  to  allege  or  prove  special  dam- 
ages in  order  to  maintain  such  action.  In  such  actions,  a 
married  woman  may  sue  alone,  and  any  recovery  therein 
shall  be  her  sole  and  separate  property." 

§  153«.  In  the  absence  of  any  statutory  provision  on 
the  subject,  all  language  concerning  a  person  in  his  indi- 
vidual capacity  merely,  when  published  orally,  is  action- 
able per  se,  which, 

I.  Charges  an  indictable  offense  involving  moral  tur- 
pitude; or, 

II.  Charges  the  being  afflicted  with  certain  diseases. 

§  154.  In  New  York,  oral  language  is  actionable  per 
se,  when  it  imputes  a  charge  which  if  true  will  subject  the 
party  charged  to  an  indictment  for  a  crime  involving 
moral  turpitude,  or  subject  him  to  an  infamous  punish- 
ment.    This  was  the  rule  laid  down  by  Justice  Spencer, 

1  See  in  note  p.  76,  ante,  and  note  to  §  171,  post. 

2  Laws  N.  Y.  1871,  ch.  219,  took  effect  29th  March,  1871. 


§   154.]  IS    ACTIONABLE.  207 

in  Brooker  v.  Coffin,1  and  as  to  which  Justice  Bronson 
said,  that  although  it  was  not  entirely  satisfactory  to  his 
mind,  he  felt  bound  to  follow  it.2  It  was  proposed  by 
counsel  to  modify  the  rule  as  stated  above  by  altering  or 
into  and,  but  the  court  refused  assent  to  the  suggestion,3 
and  the  rule,  as  laid  down  in  Brooker  v.  Coffin,  has  been 
followed  in  numerous  cases  in  New  York  and  other 
States.4  In  reference  to  the  above  rule  it  has  been  re- 
marked that  "  when  the  courts  say  the  words  are  action- 
able if  they  subject  the  party  to  indictment  and  infamous 
punishment,  provided  they  be  true,  we  clearly  understand 
what  is  the  extent  of  the  rule ; "  but  when  they  add  "  or 
subject  the  party  to  an  indictment  for  an  offense  involving 
moral  turpitude,  we  are  left  in  doubt  what  charges  are 
embraced  within  the  sentence ;  it  lacks  precision." 5  And 
again,  "This  element  of  moral  turpitude  is  necessarily 
adaptive ;  for  it  is  itself  denned  by  the  state  of  public 
morals,  and  thus  far  fits  the  action  to  be  at  all  times 
accomodated  to  the  common  sense  of  the  community."6 
Chief  Justice  Parker  refused  to  adopt  the  rule  as  laid 


1  5  Johns.  188. 

2  Young  v.  Miller,  3  Hill,  22. 

3  "Widrig  v.  Oyer,  14  Johns.  124. 

•Wright  v.  Paige,  36  Barb.  438;  aff'd  3  Trans.  App.  134;  Quin  v.  O'Gara,  2  E. 
D.  Smith,  388;  Martin  v.  Stillwell,  13  Johns.  275;  Burtch  v.  Nickerson,  17  Johns. 
219 ;  Van  Ness  v.  Hamilton,  19  Johns.  367;  Gibbs  v.  Dewey,  5  Cow.  503;  Demarest 
v.  Haring,  6  Cow.  88 ;  Crawford  v.  "Wilson,  4  Barb.  504 ;  Alexander  v.  Alexander,  9 
"Wend.  141;  Hoag  v.  Hatch,  23  Conn.  590;  Andres  v.  Koppenheafer,  3  Serg.  &  R. 
255 ;  Todd  v.  Rough,  10  Serg.  <fe  R.  18 ;  McCuen  v.  Ludlam,  2  Harrison  (N.  J.),  12 ; 
Johnson  v.  Shields,  1  Dutcher,  118  ;  Giddens  v.  Mirk,  4  Geo.  360;  Burton  v.  Burton,  3 
Iowa,  316;  Gage  v.  Shelton,  3  Rich.  242;  Kinney  v.  Hosea,  3  Harr.  77;  Coburn  v. 
Harwood,  Minor,  93;  Perdue  v.  Burnett,  Minor,  138;  Hilhouse  v.  Peck,  2  Stew.  <fe 
Por.  395;  Johnston  v.  Morrow,  9  Porter,  525;  Taylor  v.  Kneeland,  1  Doug.  (Mich.), 
67 ;  Beck  v.  Stitzel,  21  Penn.  St.  R.  522 ;  Billings  v.  "Wing,  7  Verm.  439 ;  The  State 
v.  Burroughs,  2  Halst.  426;  1  Amer.  Lead.  Cas.  113,  3d  ed. 

6  Daniel,  J.,  Skinner  v.  White,  1  Dev.  &  Bat.  471 ;  and  see  Brady  v.  Wilson,  4 
Hawks,  93;  Wall  v.  Hoskins,  5  Ired.  177;  Shipp  v.  McCraw,  3  Murph.  463. 

e  Lowrie,  J.,  Beck  v.  Stitzel,  21  Penn.  St.  Rep.  622. 


208  WHAT   ORAL    LANGUAGE  [CL  VHT. 

down  in  Brooker  v.  Coffin,  supra,  and  laid  down  the  rule 
as  thus :  an  accusation  is  actionable  whenever  an  offense  is 
charged  which,  if  proved,  may  subject  the  party  to  a  pun- 
ishment, though  not  ignominious,  and  which  brings  dis- 
grace upon  him.1  The  same  judge  has  also  laid  down 
the  rule  as  thus :  "  Words  imputing  crime  in  the  party 
against  whom  they  are  spoken,  which  if  true  would 
subject  him  to  disgraceful  punishment,  are  actionable  with- 
out special  damages."2  To  render  the  imputation  of  a 
crime  actionable  there  needs  not  the  same  certainty  in 
stating  the  crime  as  in  an  indictment  for  such  a  crime.3 

§  155.  The  following  offenses,  among  others,  have 
been  held  to  involve  moral  turpitude :  keeping  a  bawdy- 
house,4  removing  land  marks,5  selling  spirituous  liquor  to 


1  Miller  v.  Parish,  8  Pick.  385. 

*  Chaddock  v.  Briggs,  13  Mass.  248 ;  and  to  the  like  effect,  Bloss  v.  Tobey,  2 
Pick.  320;  "Words  to  be  actionable  must  charge  an  offense  subject  to  corporal  or 
infamous  punishment."  (Elliott  v.  Ailsberry,  2  Bibb,  473  :  McGee  v.  Wilson,  Lit.  Sel. 
Cas.  187.)  Words  are  not  actionable  per  se  when  "they  impute  no  crime  which 
could  be  visited  by  infamous  punishment."  (Buck  v.  Hersey,  31  Maine,  558;  Gos- 
ling v.  Morgan,  32  Penn.  State  Pep.  (8  Casey),  273.)  The  charge  of  a  misdemeanor  to 
be  actionable  per  se  must  be  one  which  "  implies  some  heinous  offense  involving  moral 
turpitude."  (Mills  v.  Wimp,  10  B.  Monroe,  417.)  Dotharcr  v.  Bushey,  4  Harris,  204 ; 
Stitzell  v.  Reynolds,  9  P.  F.  Smith,  488.  An  indictment  lies  for  many  acts  not  in- 
volving moral  turpitude.     (Quinn  v.  O'Gara,  2  E.  D.  Smith,  388.) 

Words  charging  an  offense  involving  moral  turpitude  and  indictable,  although 
not  subjecting  the  offender  to  infamous  punishment,  are  actionable  in  themselves. 
(Perdue  v.  Burnett,  Minor,  138.) 

Any  words  which,  according  to  their  natural  import,  impute  a  crime  or  mis- 
demeanor, which  is  punishable  in  the  temporal  courts  by  corporal  punishment,  are 
actionable  in  themselves.     (Demarest  v.  Haring,  6  Cow.  76.) 

"  An  action  will  lie  for  all  words  spoken  of  another,  which  impute  to  him  the 
commission  of  a  crime  involving  moral  turpitude,  and  which  is  punishable  by  law." 
Heard  on  Libel,  25. 

3  Miller  v.  Miller,  8  Johns.  74 ;  Randell  v.  Butler,  7  Barb.  260. 

4  Martin  v.  Stillwell,  15  Johns.  275;  Brayne  v.  Cooper,  5  M.  &.  W.  249;  Wright 
v.  Paige,  36  Barb.  438 ;  3  Trans.  App.  134. 

6  Young  v.  Miller,  3  Hill,  24 ;  Todd  v.  Rough,  10  S.  &.  R.  18 ;  Dial  v.  Holter,  6 
Ohio  (N.  S.),  228. 


§  156.]  IS    ACTIONABLE.  209 

a  slave,1  paying  money  to  secure  election  as  a  justice  of 
the  peace,3  opening  a  letter  addressed  to  another,3  altering 
the  owner's  marks  on  animals,4  soliciting  one  to  commit' 
murder,5  indecent  exposure  of  the  person,6  embracery,7 
making  a  false  declaration  of  a  right  to  vote,8  and  coun- 
terfeiting.9 

§  156.  In  some  of  the  States  it  seems  that  all  oral 
language  which  imputes  an  indictable  offense  or  an  offense 
punishable  at  law,  is  actionable  per  se  j  thus  it  is  said : 
"  All  that  is  essential  to  the  maintenance  of  the  action  for 
slander  is  that  the  words  shall  impute  the  commission  of  a 
punishable  offense." 10  To  be  actionable  the  effect  of  the 
language  must  be  "to  charge  some  crime  or  offense 
punishable  by  law ; "  n  "  a  charge  of  crime  or  some  punish- 
able offense,"  12  or  "  words  imputing  to  another  a  crime 
punishable  by  law," 13  or  an  indictable  offense.14  While  in 
other  States  it  is  held  that  words,  to  be  actionable,  must 

I  Smith  v.  Smith,  2  Sneed,  4*73. 

5  Hoag  v.  Hatch,  23  Conn.  585. 

3  Cheadle  v.  Buell,  6  Ham.  67;  contra,  McCuen  v.  Ludlam,  2  Harr.  12 ;  and  see 
Hillhouse  v.  Peck,  2  Stew.  <fe  Port.  395. 

4  Perdue  v.  Burnett,  Minor,  138. 

'  Demarest  v.  Haring,  6  Cow.  76. 

6  Torbitt  v.  Clare,  9  Irish  Law  Pv.  86. 

'  Gibbs  v.  Dewey,  5  Cow.  503  ;  see  ante,  §  144.  subd.  j. 

8  Crawford  v.  Wilson,  4  Barb.  505. 

8  Howard  v.  Stephenson,  2  Const.  Rep.,  2d  series,  408 ;  Thirman  v.  Matthew,  1 
Stew.  384.  All  words  imputing  a  crime  are  actionable.  (Deford  v.  Miller,  3  Penns. 
103).     See  Arson,  Forgery,  Larceny,  Perjury,  Homicide. 

10  McKinney,  J.,  Poe  v.  Grever,  3  Sneed,  666.  "  Words  which  impute  trespass, 
assault,  battery,  and  the  like,  are  .not  actionable  per  se,  and  yet  these  offenses  are 
punishable  by  indictment."  (Smith  v.  Smith,  2  Sneed,  478;  Dudley  v.  Horn,  21 
Ala.  379;  Billings  v.  Wing,  7  Verm.  444.)  Oral  language  to  be  actionable  must  im- 
pute something  criminal  or  that  would  exclude  from  society.  (Colby  v.  Reynolds,  6 
Verm.  489.) 

II  Bunnell  v.  Fiske,  11  Mete.  552. 

11  Edgerley  v.  Swaine,  32  N.  Hamp.  481. 

13  Teuney  v.  Clement,  10  N.  Hamp.  57;  Lukehart  v.  Byerly,  53  Penns.  418. 
M  Kinney  v.  Hosea,  3  Harring.  77. 


210  WHAT   OEAL   LANGUAGE  [Ch.  VIII. 

impute  not  only  an  indictable  offense,  but  an  indictable 
offense  for  which  corporal  punishment  may  be  inflicted  as 
the  immediate  penalty.1 

§  157.  Judging  from  the  language  of  many  English 
dicta,  the  rule  in  England  would  seem  to  be  that  all  oral 
language  is  actionable  per  se,  which  imputes  a  crime  or  in- 
dictable offense.  "  An  action  lies  for  any  words  which 
import  the  charge  of  a  crime  for  which  the  party  may  be 
indicted." 2  "  The  test  is,  whether  the  crime  is  indictable 
or  not." 3  "  Where  an  offense  of  a  criminal  nature  is  im- 
puted by  the  slander  for  which  the  party  is  liable  to  in- 
dictment or  punishment  by  the  common  or  statute  law, 
those  words  are  actionable  per  se" 4  " It  is  well  known 
that  words  are  not  actionable  unless  they  impute  some 
crime  or  indictable  offense." 5  "  The  words,  to  be  action- 
able, must  impute  a  criminal  offense ;  that  is,  the  words, 
if  true,  must  be  such  that  the  plaintiff  would  be  guilty  of 
a  criminal  offense." 6  While  other  decisions  seem  to  re- 
quire that  an  offense  must  be  imputed — which  would  not 
only  subject  the  party  charged  to  imprisonment,  but  to  an 
infamous  punishment.  To  make  the  words  actionable  per 
se  "there  must  not  only  be  imprisonment,  but  an  in- 
famous punishment ; " 7  and  therefore  in  that  case  it  was 

1  Birch  v.  Benton,  26  Miss.  (5  Jones)  153 ;  Billings  v.  Wing,  7  Verm.  144. 

3  Mayne  v.  Digle,  Freeman,  46.  Words,  to  be  actionable  in  themselves,  must 
charge  some  scandalous  crime ;  they  must  be  such  as  to  impute  to  the  party  an 
offense  for  which  he  may  be  indicted.  (Walmsley  v.  Russell,  6  Mod.  200.)  In 
Smale  v.  Hammon,  1  Bulst.  40,  it  was  said  where  the  words  spoken  do  tend  to  the 
infamy,  discredit  or  disgrace  of  the  party,  they  shall  be  actionable,  but  this  dictum 
was  said  to  go  too  far.  (Holt  v.  Scholefield,  6  T.  R.  691.)  In  Scobell  v.  Lee  (2  Show. 
32),  it  was  held  not  actionable  to  call  one  regrator,  because  regrating,  although  crim- 
inal, was  not  punishable  by  loss  of  life  or  limb.  In  ancient  books  we  do  not  meet 
with  the  action  for  words  unless  the  slander  concerned  life.  .  Vaughan  Ch.  J.,  2 
Vent.  28. 

3  Comyn's  Dig.  Act.  for  Defam.  F.  20. 

4  2  Saund.  Pi  and  Ev.  898,  2d  Eng.  Ed. 

6  TyndalCh.  J.  Edsall  v.  Russell,  5  Sc.  N.  R.  815 ;  2  Dowl.  N.  S.  648;  4  M.  and 
G.  1099  ;  12  Law  Jour.  N.  S.  C.  B.  7. 

6  Alderson,  B.  Heming  v.  Power,  10  M.  and  W.  570. 

7  Holt,  Ch.  J.,  Turner  v.  Ogden,  2  Salk.  696. 


§  158.]  IS    ACTIONABLE.  211 

held  that  the  words  "  Thou  art  one  of  those  that  stole  my 
Lord  Shaftesbury's  deer  "  were  not  actionable  per  se,  be- 
cause, although  the  offense  of  deer-stealing  was  punishable 
by  imprisonment,  it  was  not  an  infamous  punishment.  "  The 
words  [to  be  actionable]  must  contain  an  express  imputa- 
tion of  some  crime  liable  to  punishment,  some  capital 
offense,  or  other  infamous  crime  or  misdemeanor."  *  Mr. 
Starkie  says :  "  Perhaps  it  may  be  inferred  generally,  that 
to  impute  any  crime  or  misdemeanor  for  which  corporal 
punishment  may  be  inflicted  in  a  temporal  court  is  action- 
able, without  proof  of  special  damage.  Where  the  penalty 
for  an  offense  is  merely  pecuniary,  an  action  will  not  lie 
for  charging  such  offense ;  even  though  in  default  of  pay- 
ment imprisonment  should  be  prescribed,  imprisonment 
not  being  the  primary  and  immediate  punishment  for  the 
offense."  2 

§  158.  It  has  been  supposed  that  the  gist  of  the  action 
for  slander  was  the  peril  of  prosecution  to  which  a  person 
was  exposed  by  the  charge,  and  therefore  that  for  charg- 
ing an  offense  which  has  been  pardoned  or  atoned  for,  or 
which  is  barred  by  the  statute  of  limitations,  no  action  can 
be  maintained.  Thus  it  is  said,  "  The  ground  of  the  mat- 
ter being  actionable  is,  that  a  charge  is  made  which,  if  it 

1  De  Grey,  Ch.  J.,  Onslow  v.  Home,  3  Wilson,  186.  This  rule,  says  Mr.  Heard 
(Heard  on  Libel,  16),  is  universally  referred  to  as  the  correct  rule,  and  was  repeated 
in  Holt  v.  Scholefield,  6  T.  R.  694,  and  in  Beardsley  v.  Dibblee,  1  Kerr,  258,  and 
adopted  in  Shaffer  v.  Knitzer,  1  Binney,  542 ;  Andres  v.  Koppenheafer,  3  Serg.  & 
R.  257;  Bloom  v.  Bloom,  5  id.  392  ;  Pelton  v.  Ward,  3  Caines,  79 ;  Smith  v.  Smith,  2 
Sneed,  478;  Johnson  v.  Shields,  1  Dutcher,  119. 

2  1  Starkie  on  Slander,  43;  6  Mod.  104.  This  view  of  the  law  is  adopted  in 
Billings  v.  Wing,  7  Verm.  439  ;  Wagaman  v.  Byers,  17  Md.  183  ;  and  in  a  note  at 
page  90  ofMetcalfs  edition  of  Yelverton's  Reports,  but  is  questioned  1  Amer.  Lead. 
Cas.,  112,  2d  ed.,  and  in  Smith  v.  Smith,  2  Sneed,  478.  Saying  that  plaintiff  went  to 
mass  was  held  actionable,  because  it  was  by  statute  an  offense  punishable  by  fine  and 
imprisonment.  (Sir  Lionel  Walden  v.  Mitchell,  2  Vent.  265.)  And  concealing  a 
felony  was  held  actionable  at  a  time  when  such  an  offense  was  punishable  by  fine 
only.  (Newlyn  v.  Fasset,  Yelv.  154).  But  the  words  thou  art  a  common  barrator,  it 
was  said  would  not  support  an  action  because  the  punishment  was  merely  fine  and 
binding  to  good  behavior.     (Heake  v.  Moulton,  Yelv.  90.) 


212  WHAT   OEAL    LANGUAGE  [Ch.  Vffl. 

were  true,  would  endanger  the  plaintiff  in  point  of  law."1 
The  better  opinion  is,  that  the  action  of  slander  "  is  al- 
ways for  the  loss  of  character  and  not  the  danger  of 
punishment,"  2  or  the  hazard  of  a  criminal  prosecution.3 
"  It  is  a  great  slander  to  be  once  a  criminal ;  and  although 
a  pardon  may  discharge  the  punishment,4  yet  the  scandal 
of  the  offense  remains." 5  It  is  in  this  view  that  it  has 
been  held  actionable,  subject  to  justification  on  the  ground 
of  truth,6  to  say  of  one,  "  He  was  a  thief  and  stole  my 
gold ; " 7  or, "  He  is  a  returned  convict ; " 8  or, "  He  is  a  con- 
vict and  has  been  in  the  Ohio  penitentiary ; " 9  or,  "  You 
have  been  cropped  for  felony ; " 10  or, "  Thou  wast  in  Laun- 
ceston  gaol  for  coining  and  burnt  in  the  hand  for  it ; "  u  or, 
"Robert  Carpenter  (the  plaintiff)  was  in  Winchester  gaol 
and  tried  for  his  life,  and  would  have  been  hanged  had  it 
not  been  for  Leggett,  for  breaking  open  the  granary  of 
farmer  A.  and  stealing  his  bacon ; " 12  or,  "  He  was  whipped 

4  Parke  B.,  HemiDg  v.  Power,  10  M.  &.  W.  569.  See  Hervey  v.  Boies,  1  PeDns. 
14;  Andres  v.  Hoppenheafer,  3  Serg.  &  R.  258;  Dalrymple  v.  Lofton,  1  M'Mullan, 
118.  "  The  grounds  of  action  are  to  be  found  in  the  degradation  of  the  party  in  so- 
ciety, or  his  liability  to  criminal  animadversion.  *  *  *  The  party's  jeopardy,  in 
a  legal  point  of  view,  is  regarded  by  the  law  as  the  principal  ground  of  action."  (1 
Starkie  on  Slander,  18.)  But  criminal  liability  is  not  always  the  peculiar  and  ex- 
clusive ground  of  action ;  instances  are  to  be  found  of  remedy  for  imputations  which 
could  not  subject  the  party  to  any  future  jjenalty.    (Id.  19.) 

2  Van  Ankin  v.  Westfall,  14  Johns.  233 ;  Shipp  v.  McCraw,  3  Murph.  466. 

3  Eastland  v.  Caldwell,  2  Bibb,  24 ;  Smith  v.  Stewart,  5  Barr,  372 ;  Beck  v. 
Stitzel,  21  Penn.  St.  R.  524;  Poe  v.  Grever,  3  Sneed,  664. 

4  "  In  the  eye  of  the  law  the  [pardoned]  offender  is  as  innocent  as  if  he  had  never 
committed  the  offense."  (Ex-parte  Garland,  4  Wallace,  380 ;  U.  S.  v.  Paddleford,  9 
Wallace,  542.)  "The  pardon  makes  him  a  new  man,  and  gives  him  a  new  capacity 
and  credit."     (2  Hawk.  P.  C,  ch.  57,  §48.) 

6  Boston  v.  Tatham,  Cro.  Jac.  622,  and  see  Cuddington  v.  Williams,  Hobart,  81. 
8Banm  v.  Clause,  5  Hill,  196;  Van  Ankin  v.  Westfall,   14  Johns.   233;    and  see 

post,  Defenses. 

7  Boston  v.  Tatham,  Cro.  Jac.  622. 

8  Fowler  v.  Dowdney,  2  Moo.  <fe  Rob.  119;  and  see  the  reporter's  note  to  this  case 
8  Smith  v.  Stewart,  5  Barr,  372. 

10  Wiley  v.  Campbell,  5  Monr.  396. 

11  Gainford  v.  Tuke,  Cro.  Jac.  536. 

-2  Carpenters.  Tarrant,  Rep.  temp.  Hard.  339,  cited  by  L'd  Ellenborough,  Roberta 
v.  Camden,  9  East,  97. 


§  159.]  IS   ACTIONABLE.  213 

for  stealing  hogs ;  "  *  or,  "  He  was  put  in  the  roundhouse 
for  stealing  ducks  at  Crowland ; " 2  or,  "  Thou  hast  been  in 
gaol  for  stealing  a  pan." 3  For  the  words,  "Thou  wert  in 
gaol  for  robbing  on  the  highway,"  the  court  was  divided 
if  actionable  or  not ; 4  a  charge  of  committing  a  statutable 
offense  was  held  actionable,  although  intermediate  the 
speaking  the  words  and  the  commencement  of  the  action 
the  statute  was  repealed.5 

§  159.  Where  the  offense  is  charged  to  have  been  com- 
mitted in  a  foreign  state,  it  will  be  actionable  if  it  appear 
that  the  offense  charged  is  one  by  the  law  of  that  state 
punishable  by  indictment,  and  involving  moral  turpitude. 
Where  the  offense  charged  is  one  punishable  by  indict- 
ment at  common  law  it  will  be  presumed  to  be  indictable 
everywhere ;  but  if  the  offense  charged  be  one  created  by 
statute  or  punishable  by  indictment  by  statute,  then,  as 
courts  cannot  take  judicial  notice  of  the  statutes  of  foreign 
states,  to  make  the  charge  actionable  the  statute  relating 
to  the  offense  charged  must  be  pleaded  and  proved  like 
any  other  fact.6  Thus  it  is  actionable  per  se,  to  charge  one 
with  stealing  in  a  foreign  state  or  country,7  or  with  mur- 

1  Holley  v.  Burgess,  9  Ala.  728. 

2  Beavor  v.  Hides,  2  Wils.  300. 

3  She-well  v.  Haman,  Cro.  Jac.  153. 
*  Smale  v.  Hammon,  1  Bulst.  40. 

5  French  v.  Creath,  Breese,  12. 

c'  Offutu  Earlywine,  4  Blackf.  460;  Linville  v.  Earlywine,  id.  469;  Langdon  v. 
Young,  33  Verm.  136;  Stout  v.  "Wood,  1  id.  71 ;  Barclay  v.  Thompson,  2  Penns.  148,- 
Poe  v.  Greyer,  3  Sneed,  644;  Sparrow  v.  Maynard,  8  Jones  L.  (N.  Car.)  195.  Burning- 
a  barn  is  an  offense  by  the  statutes  of  Indiana,  but  not  at  common  law,  therefore  a 
charge,  "  He  had  to  leave  Indiana  for  burning  a  barn,"  is  not  actionable  without 
a  colloquium  of  the  law  of  Indiana.  (Bundy  v.  Hart,  46  Mo.  460.)  Thus  the 
stealing  of  bank  notes  not  being  indictable  at  common  law,  to  charge  a  theft  of  bank 
notes  in  South  Carolina,  was  held  not  to  be  actionable  in  North  Carolina,  unless  it  was 
shown  that,  by  the  laws  of  South  Carolina,  such  stealing  was  subject  to  an  infamous 
punishment.  (Wall  v.  Hoskins,  5  Iredell,  177.)  A.  and  B.  being  in  North  Carolina, 
A.  charged  B.  with  stealing  a  note  from  him  in  Virginia,  and  it  appearing  that  steal- 
ing notes  was  a  larceny  in  Virginia,  the  charge  was  held  to  be  actionable.  (Shipp  v. 
McCraw,  3  Murph.  463. ) 

1  As  to  say  in  Canada,  Old   Smith  (plaintiff)  is  a  damned  thief,  he  stole  a  cow  in 


214  WHAT   ORAL    LANGUAGE  [Ch.  VIII. 

der,1  and  an  action  may  be  maintained  for  charging  a 
crime  committed  in  another  state,  which  it  would  not  be 
actionable  to  charge  the  commission  of  in  the  state  in 
which  the  action  is  commenced.2 

§  160.  "No  charge  upon  a  plaintiff,  however  foul,  will 
be  actionable  without  special  damage,  unless  it  be  of  an 
offense  punishable  in  a  temporal  court  of  criminal  j mis- 
diction," 3  and  therefore   held   not   actionable  per  se   to 

the  States  (United  States).  (Smith  v.  Collins,  3  Up.  Can.  Q.  B.  R.  1 ;  and  see  John- 
son v.  Dicken,  25  Missouri  (4  Jones),  580 ;  Cefret  v.  Burch,  1  Sneed,  400.) 

1  Words  charging  the  commission  of  murder  in  Ireland  are  actionable  without 
proving  murder  to  be  an  indictable  offense  in  that  country.  (Montgomery  v.  Deeley, 
3  Wis.  709.)  To  charge  one  with  administering  poison  in  a  foreign  country,  with 
intent  to  kill,  is  actionable,  semble  the  court  will  presume  such  an  offense  to  be  indict- 
able.    See  Langdon  v.  Young,  33  Verm.  136. 

2  Van  Ankin  v.  Westfall,  14  Johns.  233 ;  and  see  Stout  v.  Wood,  1  Blackf.  91. 

3  1  Starkie  on  Slander,  21,  and  he  proceeds  to  establish  this  proposition  by  refer- 
ring to  the  cases  in  which  it  has  been  decided  that  to  say  a  man  is  "  forsworn,"  or  has 
"taken  a  false  oath,"  is  not  actionable  unless  the  charge  connects  it  with  some  judicial 
proceeding.  Without  this  connection  he  says  the  charge  only  imputes  a  breach  of 
morality,  for  which  no  action  lies.  [See  Perjury,  pout.]  Besides  the  older  authori- 
ties there  is  cited  Hopkins  v.  Beedle,  1  Cai.  347 ;  Stafford  v.  Green,  1  Johns.  505  ; 
Ward  v.  Clark,  2  id.  10;  Watson  v.  Hampton,  2  Bibb's  R.  319  ;  Jacobs  v.  Fylee,  3 
Hill,  572.  To  these  we  add  Hopwood  v.  Thorn,  8  C.  B.  293 ;  Brite  v.  Gill,  2  Monr. 
65 ;  Dorsey  v.  Whipps,  8  Gill,  457 ;  Holt  v.  Scholefield,  6  T.  R.  694 ;  Wyant  v.  Smith, 
5  Blackf.  293 ;  Tebbetts  v.  Coding,  9  Gray,  254 ;  Edgerley  v.  Swain,  32  ET.  H.  478  ; 
Wright  v.  Lindsay,  20  Ala.  428;  Barham  v.  Nethersall,  Yelv.  21;  and  see  Heard  on 
Libel,  §  28.  A  charge  of  having  "  broken  open  and  read  a  letter  "  sent  by  mail,  held 
not  actionable,  because  the  offense,  although  indictable,  is  not,  morally  speaking,  a 
crime.  (Hillhouse  v.  Peck,  2  Stew.  <fe  Port.  395 ;  and  see  McCuen  v.  Ladlum,  2  Harr. 
12;  Cheadle  v.  Buell,  6  Ham.  67;  post,  note  to  §  178,  and  ante,  p.  208,  note  3. 

Where  the  words  on  their  face  charge  a  criminal  offense,  but  are  shown  by  their 
context  or  otherwise,  not  to  have  that  meaning,  they  are  not  actionable ;  thus  the 
words,  they  are  highwaymen,  robbers,  and  murderers,  being  shown  to  relate  to  a 
transaction  not  amounting  to  a  criminal  offense,  were  held  not  to  be  actionable.  (Van 
Rensselaer  v.  Dole,  1  Johns.  Cas.  279.)     And  see  J:  134  and  note  to  §  137,  ante. 

It  has  been  held  that  a  charge  by  a  married  woman  of  having  stolen  her  goods,  is 
not  actionable  [she  having  no  separate  estate],  as  a  married  woman  could  not  have 
goods  of  her  own.  (1  Rolle  Abr.  74;  6  Bac.  Abr.  238;  1  Starkie  on  Slander,  77.) 
But  where  a  married  woman  said,  my  turkeys  are  stolen,  Charnell  hath  stolen  them, 
it  was  held  Charnell  might  have  his  action.  (Charnell's  Case,  Cro.  Eliz.  279.)  And 
so  where  a  married  woman  said,  thou  hast  stolen  my  faggots.  (Stamp  v.  White, 
Palmer,  358;  and  see  Fowell  v.  Plunkett,  Cro.  Car.  52.) 

By  the  statutes  of  Illinois,  no  child  under  the  age  of  ten  years  can  be  punished 
for  larceny;   but  an  action  may  be  maintained  by  such   child  for  slanderous  words 


§  161.]  13    ACTIONABLE.  215 

charge  a  breach  of  trust,1  or  a  malicious  trespass,2  or  of 
burning,  destroying,  and  suppressing  a  will,3  or  attempting 
to  procure,  or  causing  or  procuring  a  miscarriage,4  or  with 
incest,5  or  adultery,6  or  crime  against  nature,7  or  with 
cheating,8  or  "mismarking"  cattle,9  or  living  by  im- 
posture.10 

§  161.  A  purpose  or  intent  to  do  an  unlawful  act, 
without  any  act  being  done,  is  not  punishable  criminally, 
and  therefore  within  the  rule  stated  in  the  last  preceding 
section  (§  160),  it  is  not  actionable  orally  to  charge  one 
with  a  mere  intent  to  commit  an  offense,11  "  and  this  rule 
seems  in  all  times  to  have  been  adhered  to  with  more  con- 
sistency than  is  generally  observable  in  decisions  relating 
to  slander." 12   Thus  it  has  been  held  not  actionable  to  say 

accusing  her  of  theft.  (Stewart  v.  Howe,  17  111.  VI;  and  see  Redway  v.  Gray,  31 
Verm.  (2  Shaw)  292;  Dukes  v.  Clark,  2  Blackf.  20;  Bash  v.  Somers,  20  Penns.  (8 
Harris)  159.     See  notes  pp.  173,  174,  and  note  10,  p.  195,  and  §  144,  subd.  bb.  ante. 

1  McClurg  v.  Ross,  5  Binn.  218. 

2  Wilcox  v.  Edwards,  5  Blackf.  183. 

3  O'Hanlon  v.  Myers,  10  Rich.  Law  (S.  Car.),  128;  and  see  3  Salk.  327. 

4  Not  within  the  exceptions  of  the  statute  (Bissell  v.  Cornell,  24  Wend.  354 ; 
Abrams  v.  Foshee,  3  Clarke,  274;  Smithy.  Gafford,  31  Ala.  45),  and  held  not  ac- 
tionable to  charge  an  attempt  to  commit  a  robbery.  (Russell  v.  Wilson,  7  B.  Monr. 
261.) 

6  Eure  v.  Odom,  2  Hawks,  52;  and  as  to  charge  of  incest,  see  Starr  v.  Gardner,  6 
Up.  Can.  Q.  B.  Rep.  O.  S.  512;  Watts  v.  Greenlee,  2  Der.  115;  Gallwey  v.  Marshall, 
9  Exch.  294,  ante,  §  141. 

6  Wagaman  v.  Byers,  17  Md.  1S3 ;  Castlebury  v.  Kelly,  26  Geo.  606 ;  see  ante, 
§  144,  subd.  a.,  and  j>ost. 

7  Coburn  v.  Harwood,  Minor,  93 ;  Estes  v.  Carter,  10  Iowa,  400;  see  ante,  §§  144,  153, 
and  post.     Where  the  crime  against  nature  is  indictable,  to  charge  the  commission  of 

it  is  actionable.     (Goodrich  v.  Woolcot,  3  Cow.  231;  5  Cow.  714.) 

8  Odiorne  v.  Bacon,  6  Cush.  185  ;  Richardson  v.  Allen,  2  Chit.  657;  Wierback  v. 
Trone,  2  Watts  &  Ser.  408.  Thou  hast  cheated  me  of  several  pounds,  held  actionable. 
(Surman  v.  Shilletto,  3  Burr.  1688.) 

9  Williams  v.  Karnes,  4  Humph.  9  ;  Johnson  v.  Morrow,  9  Port.  52."). 

10  Wilby  v.  Elston,  18  Law  Jour.  320,  C.  P. ;  13  Jur.  706  ;  7  Dowl.  &  L.  143  ;  8  C. 
B.  142. 

11  McKee  v.  Installs,  4  Scam.  30;  Seaton  v.  Cordray,  Wright,  101;  Harrison  v. 
Stratton,  4  Esp.  218;  Wilson  v.  Tatum,  8  Jones  L.  (N.  Car.)  300. 

"  1  Starkie  on  Slander,  23. 


216  WHAT    OEAL    LANGUAGE  [Ch.  VIII,. 

of  one,  Thou  hast  procured  J.  S.  to  come  thirty  miles  to 
commit  perjury  against  his  father  *  *  *  and  hast 
given  him  £10  for  his  pains;  or,  Harris  hath  procured 
and  suborned  one  Smith  to  come  thirty  miles  to  commit 
perjury  against  his  father  *  *  *  and  given  Smith 
£10  for  that  purpose;1  or,  Thou  wouldst  have  killed  me,2 
or,  She  would  have  cut  her  husband's  throat ; 3  or,  Thou 
wouldst  have  taken  my  purse  from  me  on  the  highway ; 4 
or,  Thou  wouldst  have  murdered  me ; 5  or,  Sir  Harbert 
Crofts  keepeth  men  to  rob  me ; 6  but  for  the  words,  He 
sent  his  man  A.  to  kill  me,  the  court  was  divided  if  ac- 
tionable or  not ; 7  and  the  words,  He  will  lie  in  wait  to 
rob  J.  S.  within  two  days,  were  held  actionable. s  So  were 
the  words,  "You  may  well  spend  money  at  law,  for  you 
can  coin  money  out  of  half  pence  and  farthings,"  because 
the  words  implied  an  act,  for  by  a  mere  power  the  plaintiff 
could  never  be  able  to  spend  money  at  law.9  From  the 
fact  that  in  England  a  mere  intent  may  constitute  the 
crime  of  treason,  a  charge  of  treasonable  intention  has 
there  been  held  to  be  actionable ;  thus,  for  saying,  "  he  is 
a  Jacobite,  and  for  bringing  in  the  Prince  of  Wales  and 
popery  to  the  destroying  of  our  nation,"  held  an  action 
could  be  maintained.10 

8  162.  It  has  been  said  the  cases  are  uniform  on  the 


1  Harris  v.  Dixon,  Cro.  Jac.  158;  Yelv.  72. 

2  Potts'  Case,  Vin.  Abr.  Act.  for  Words,  Q.  a.  8 ;  cited  as  Dr.  Poe's  Case,  2 
Bulst.  206. 

3  Scott  v.  Hillers,  Lane,  98;  but  it  being  added,  and  did  attempt  it,  the  latter 
words  were  held  actionable. 

4  Godb.  202. 

6  Tettal  v.  Osborne,  cited  in  Storrer  v.  Audley,  Cro.  Eliz.  250.  He  sought  tc- 
murder  me,  held  actionable,  because  sought  implies  more  than  a  mere  intent.  (Cro. 
Eliz.  308.) 

8  Crofts  v.  Brown,  3  Bulst.  167. 

7  Bray  v.  Andrews,  Moore,  63;  Dal.  66. 

8  Sidman  v.  Mayo,  3  Bulst.  261. 

9  Home  v.  Powell,  Salk.  697. 

10  Prinn  v.  Howe,  1  Bro.  Pari.  Ca?.  tU ;  and  see  Eaton   >.  Allen,  4  Co.  16, 


§  163.]  IS    ACTIONABLE.  217 

point  that  for  an  imputation  of  evil  inclinations  or  princi- 
ples no  action  lies,  unless  it  affects  the  plaintiff  in  some 
particular  character,  or  produces  special  damage.1  But 
unless  by  inclinations  and  principles  are  meant  intentions 
(§  161),  or  the  assertion  be  limited  to  oral  language,  the 
dictum  seems  to  be  unwarranted.  It  was  held  actionable 
to  publish  in  writing  that  plaintiff  had  openly  avowed 
the  opinion  that  government  had  no  more  right  to  pro- 
vide by  law  for  the  support  of  the  worship  of  the  Su- 
preme Being  than  for  the  support  of  the  worship  of  the 
Devil;2  or  that  plaintiff  would  put  his  name  to  anything 
that  T.  would  request  him  to  sign,  that  would  prejudice 
D.'s  character;3  and  the  words,  aHe  would  rob  the  mail 
for  one  hundred  dollars,"  spoken  of  a  postmaster,  were 
held  actionable.4 

§  163.  It  is  held,  in  some  cases,  that  words  which  de- 
note the  opinion  or  the  suspicion  entertained  by  the  pub- 
lisher, are  not  equivalent  to  a  direct  charge,  and  therefore 
are  not  actionable ; 5  thus,  where  the  words  were,  "  I  have 
a  suspicion  that  you,  B.,  have  robbed  my  house,  and 
therefore  I  take  you  into  custody,"  it  was  held  the  judge 
rightly  directed  the  jury  that  if  they  believed  the  defend- 
ant meant  to  impute  only  a  suspicion  of  felony,  and  not 
an  absolute  charge  of  felony,  their  verdict  must  be  for  the 
defendant.6     The  words  "  she  ought  to  have  been  trans- 

1  1  Starkie  on  Slander,  24;  Harrison  v.  Stratton,  4  Esp.  218. 

2  Stow  v.  Converse,  3  Conn.  325. 

3  Duncan  v.  Brown,  15  B.  Monr.  186. 

4  Craig  v.  Brown,  5  Blackf.  44. 

5  Words  wbich  denote  opinion  or  suspicion  are  not  actionable.  (Comyn's  Dig. 
Act.  for  Defam.  F.  13 ;  cited  in  Hodgson  v.  Scarlett,  1  B.  &  Aid.  233.)  "  What  is  the 
difference  between  suspicion  and  belief?  Suspicion  may  rest  on  no  grounds,  belief 
rest3  upon  some  grounds."     (Byles,  J.,  Leete  v.  Hart,  Law  Rep.  III.  C.  P.  824.) 

6  Tozer  v.  Mash  ford,  4  Eng.  L.  &  Eq.  It.  451 ;  6  Exeh.  539;  20  Law  Jour.  Rep. 
(N.  S.)  Ex.  224.  The  words,  "  I  will  take  him  to  How  street  (a  police  court  so  called) 
on  a  charge  of  forgery,"  held  not  actionable,  as  not  amounting  to  a  charge  of  felony. 
(Harrison  v.  King,  4  Price,  46;  1  Taunt.  431.) 

15 


218  WHAT    ORAL    LANGUAGE  [Cll.  VIIL 

ported,"  were  held  not  actionable  because  they  expressed 
only  the  opinion  of  the  speaker.1  But  the  words,  He 
ouorht  to  be  handed  as  much  as  A.,  who  was  in  fact 
hanged,  were  construed  to  charge  an  offense  which  de- 
served hanging,  and  actionable ; 2  and  it  was  held  action- 
able to  say  of  one,  if  you  had  your  deserts  you  had  been 
hanged  before  now ; a  and  so  of  the  words,  He  hath  de- 
served his  ears  to  be  nailed  to  the  pillory,4  but  not  action- 
able to  say:  Thou  deservest  to  be  hanged;5  or,  Thou 
shouldst  have  sat  on  the  pillory  if  thou  hadst  thy  deserts  f 
or,  Thou  hast  done  that  for  which  thou  deservest  to  be 
hanged.7  But  the  words,  You  have  done  things  with  the 
company  for  which  you  ought  to  be  hanged,  and  I  will 
have  you  hanged  before  the  first  of  Augu-t,  were  held 
actionable ; 8  and  so  of  the  words,  "  I  know  enough  he  has 
done  to  send  him  to  the  penitentiary." 9  It  was  held  not 
to  be  actionable  to  say  of  one,  "  He  is  a  great  rogue,  and 
deserves  to  be  hanged  as  well  as  Gale,"  who  was  con- 
demned to  be  hanged.  Because  the  words  show  opinion 
merely,  and  perhaps  the  speaker  might  not  think  Gale 
deserved  hanging.10  It  was  held  not  actionable  to  say,  I 
will  take  him  to  Bow  street  (a  police  office  so  called)  on 

1  Hancock  v.  Winter,  7  Taunt.  205.  The  words,  I  will  transport  him  for  felony, 
were  held  actionable.     (Tempest  v.  Chambers.  1  Stark.  Cas.  67.) 

2  Eead  v.  Ambrklge,  6  Car.  <fe  P.  308 ;  and  see  Davis  v.  Noak,  1  Stark.  Cas.  372. 

3  Down's  Case,  Cro.  Eliz.  62. 

4  Jenkinson  v.  Mayne,  Cro.  Eliz.  384. 
6  Heake  v.  Moulton,  Yelv.  90. 

6  Anon.,  Moore,  243. 

1  Fisher  v.  Atkinson,  Vin.  Abr.  Act.  for  Words,  G.  a.  6. 

*  On  the  ground  that  they  imputed  the  commission  of  a  crime  punishable  by 
hanging  (Francis  v.  Roose,  3  M.  <fc  W.  191).  "I  will  have  him  transported  for  per- 
j  ury  and  forgery,"  with  special  damage  held  actionable.  (Floyd  ;•.  Jones,  2  Barnard, 
101.) 

9  Johnson  v.  Shields,  1  Dutcher,  116.  A  general  charge  of  having  been  guilty  of 
crime  without  naming  the  particular  crime,  seems  sufficient  (Curtis  v.  Curtis,  4  Moo. 
&  S.  337) ;  but  held  not  sufficient  to  say  he  had  been  guilty  of  conduct  unfit  for  pub- 
lication.    (James  v.  Brook,  10  Jur.  641.) 

10  Bush  v.  Smith,  2  Jones,  157. 


§   164.]  IS    ACTIONABLE.  219 

a  charge  of  forgery.1  It  was  held  actionable  for  one  to 
say  lie  supposed  the  plaintiff  was  guilty  of  a  crime;2  or,  I 
tli  ink  he  is  a  horse  stealer.3  It  seems  no  more  than  the 
expression  of  an  opinion  to  say,  "  Two  dyers  have  gone 
off,  and  for  auffht  I  know  Harrison  will  be  so  too  within 
this  time  twelve  month."  Yet  these  words  were  held  to 
be  actionable ; 4  so  of  the  words,  "  All  is  not  well  with 
Daniel  Vivian ;  there  are  many  merchants  who  have  lately 
failed,  and  I  expect  no  otherwise  of  Daniel  Vivian " ; 5 
and  so  of  the  words,  "  I  am  thoroughly  convinced  you  are 
guilty  of  the  death  of  D.  D." 6  But  held  not  actionable  to 
express  a  supposition  or  belief  that  one  went  to  a  certain 
place  for  the  purpose  of  persuading  another  to  commit 
adultery  with  him." 

§  164.  One  may  charge  another  with  the  commission 
of  an  offense  as  well  by  way  of  a  question  as  by  a  direct 
assertion,8  as,  Is  H.  the  man  who  broke  jail?9  what  art 
thou  ?  a  bankrupt ; 10  when  will  you  bring  home  the  nine 
stolen  sheep  you  stole  from  I.  S.  \ u  have  you  brought  the 


1  Harrison  v.  King,  4  Price,  46;  7  Taunt.  431. 

2  Dickey  v.  Andrews,  32  Verm.  55. 

3  Stitch  r.  Wisedome,  Cro.  Eliz.  348. 

4  Harrison  v.  Thornborough,  10  Mod.  11. 

5  Vivian's  Case,  3  Salk.  326. 

6  Peake  v.  Oldham,  Cowper,  275 ;  2  W.  Black.  960. 

7  Dickey  v.  Andrews,  32  Verm.  55,  and  as  to  a  charge  of  inciting  one  to  commit  a 
crime  (see  Passie  v.  Mondford,  Cro.  Eliz.  747 ;  Lady  Cockaine's  Case,  Cro.  Eliz.  49 ; 
Eaton  v.  Allen,  4  Co.  16.)  The  dicta  and  decisions  that  words  denoting  opinion  are 
not  actionable,  must  have  their  origin  in  the  supposed  distinction  between  matters  of 
fact  and  matters  of  opinion.  See  this  distinction  discussed  in  a  case  of  misrepresen- 
tation, Haight  v.  Hoyt,  19  N.  Y.  468,  in  an  Essay  on  the  influence  of  authority  in 
matters  of  opinion,  by  George  Cornewall  Lewis,  and  in  the  review  of  that  work— Ed- 
inburgh Review,  April,  1860;  also  in  Whateley's  Logic;  and  see  the  distinction 
noticed,  Root  v.  King,  7  Cow.  629 ;  Reg.  v.  Ardley,  Law  Rep.  I.  Cro.  Cas.  Res.  304. 

8  Gorham  v.  Ives,  2  Wend.  534;  Sawyer  v.  Eit'ert,  2  Xev.  <fc  M.  511. 

9  Hotcliki^s  v.  Oliphant,  2  Hill,  510. 

10  Jordan  v.  Ly-ter,  Cro.  Eliz.  273,  pi.  1. 

11  Hunt  v  Tliimblethorp,  Moore,  418. 


220  WHAT   ORAL   LANGUAGE  [Ch.  VHI. 

£40  you  stole  ? 1  wilt  thou  murder  my  sister  as  thou  didst 
thy  wife?2  who  stole  tiie  bell-ropes?8  Asking  as  to  a 
forgery,  whether  the  witness  did  not  think  it  was  in  G.'s 
handwriting,  and  asserting  that  he  had  shown  it  to  some 
persons  who  said  it  was  in  G.'s  handwriting,  would  seem 
to  show  an  intent  to  impress  a  belief  of  G.'s  guilt  of  the 
forgery.4 

§  165.  In  some  of  the  older  cases  it  was  held  that 
"adjective  words,"  or  "words  spoken  adjectively,"  do  not 
confer  a  right  of  action.  But,  as  was  well  said  by  Lord 
Coke,  "sometimes  adjectives  will  maintain  an  action  and 
sometimes  not." 5  Thus  it  was  held  not  actionable  to  call 
one  "conjuring  knave,110  or  "murderous  villain,"7  or 
"  pocky  whore," 8  or  "  rebellious  knave ; " 9  but  held  action- 
able to  call  one  a  "  traitorous  knave," 10  or  a  "  traitor 
knave."  n  We  conceive  the  true  rule  to  be,  that  when  the 
word  imputes  an  act  it  is  actionable,  and  when  it  imputes 
an  intention  or  inclination  only  it  is  not  actionable.12 
Thus  it  has  been  held  not  actionable  to  call  one  a  "  thiev- 
ish knave,"  or  to  say  to  one  "  thou  hast  thievishly  taken 
my  money,"  because  the  word  thievish  or  thievishly  im- 
plies an  inclination  only;13  but  to   call  one  a  thieving 

1  Mayott  v.  Gibbons,  2  Rolle  R.  166. 

2  Brown  v.  Charlton,  Keb.  359,  pi.  52. 

s  Jaeksou  v.  Adams,  2  Scott,  599 ;  2  Bing.  N.  C.  402.    The  words  in  this  case  were 
held  not  actionable.     See  in  note  p.  173,  ante. 
*  Gorham  v.  Ives,  2  Wend.  534. 

5  4  Cuke,  19. 

6  Killick  v.  Barns,  2  Bulst.  138. 

7  Ld.  Raym.  236.    So  "murderous  quean"  held  not  actionable.     (Vin.  Abr..  Act. 
for  Words,  I.  a.  4.) 

8  Gulford's  Case,  2  Rolle  R.  71;  and  "pocky  rascal,"  see  Vin.  Abr.,  Act.  for 
Words,  G.  b.  5. 

0  Ward  v.  Thorne,  Cro.  Eliz.  171 ;  Booth  v.  Leach,  Lev.  90. 

10  Id. 

11  Selby  v.  Carryer,  2  Bulst.  210. 

1J  1  Starkie  on  Slander,  71,  and  §  162,  ante. 

H  Vin.  Abr.,  Act.  for  Words,  I.  a.  4,  11;  Robins  v.  Hildredon,  Cro.  Jac.  65. 


§  166.]  IS    ACTIONABLE.  221 

rogue  was  held  actionable  because  thieving  implies  an  act.1 
"Thieving  puppy"  was  held  actionable,2  and  so  were 
"thievish  pirate,1'3  "bankrupt  knave,"  "pocky  knave,"4 
and  "bankrupt  skrub."5  "Bankrupt  rogue"  was  held 
not  actionable  when  spoken  of  an  individual  as  such;6 
but  those  words,  when  spoken  of  one  in  trade  (a  shoe- 
maker), were  held  actionable.7  "  Bankruptcy  knave  "  was 
said  not  to  be  actionable  because  the  phrase  implies  only 
bankrupt-like  knave.8  And  so  "  Cuckoldy  rogue "  was 
held  actionable.9  A  partici])le,  it  is  said,  implies  an  act 
done,'  and  therefore  held  actionable  to  call  one  a  "  murder- 
ing rogue," 10  or  a  "  buggering  rogue,"  u  or  to  say  he  is  rob- 
bing or  ravishing.12 

§  166.  Words  charging  a  burning  amounting  to  arson, 
whether  at  common  law  or  by  statute,  are  actionable ; 13 

1  Hunt  v.  Merrychurch,  2  Keb.  440;  Dorrell  v.  Grove,  Freem.  279. 

2  Little  v.  Barlow,  26  Geo.  423 ;  Pierson  v.  Stiortz,  1  Morris,  136,  and  see  post, 
§  169. 

3  Vin.  Abr.,  Act,  tor  Words,  I.  a.  1 2. 

4  Inglebath  v.  Jones,  Cro.  Eliz.  99  ;  but  it  was  doubted  in  Robinson  v.  Mellor,  Cro. 
Eliz.  843,  if  "bankrupt  knave"  was  actionable,  and  the  phrase  was  held  not  action- 
able when  spoken  of  a  tanner.  (York  v.  Cecil,  Browl.  16.)  The  words  "base,  beg- 
garly, bankrupt  knave"  were  held  actionable  in  Still  v.  Finch,  Cro.  Car.  381 ;  and  so 
of  the  words  bribing  knave  spoken  of  an  attorney.     (Yardley  v.  Ellis,  Hob.  8.) 

5  Wilson  v.  Crow,  Sty.  75. 

6  Loyd  v.  Pearse,  Cro.  Jac.  424. 

7  Langley  v.  Colson,  Godb.  151. 

8  Selby  v.  Carrier,  Cro.  Jac.  345 ;  but  said  otherwise,  Booth  v.  Leach,  Lev.  90. 
See  Vin.  Abr.,  Act.  for  Words,  I.  a.  3. 

9  The  words  were  spoken  in  London,  and  held  actionable  as  implying  his  wife  was 
a  whore.     1  Str.  471. 

10  Green  v.  Lincoln,  Cro.  Car.  318. 

n  Collier  v.  Bourn,  2  Keb.  377;  or  "perjured  knave,"  (Staverton  v.  Relfe,  Yelv. 
160 ;)  or  "  perjured  rogue  "  (O.'ton  v.  Fuller,  Lev,  65) ;  but  where  the  word  swere,  Thou 
art  a  perjured  knave,  that  is  to  be  proved  by  a  stake  that  parts  the  lands  of  J.  S.  and 
J.  D.,  it  was  doubted  if  they  were  actionable.     (Brecheley  v.  Atkins,  Yelv.  10.) 

12  Sybthorp's  Case,  1  Rolle  Abr.  176;  1  Starkie  on  Slander,  72. 

13  Brady  v.  Wilson,  4  Hawks,  93:  Case  v.  Buckley,  15  Wend.  327  ;  Jones  v.  Ilun- 
gerford,  4  Gill  &  Johns.  402;  House  v.  House,  5  Har.  and  Johns.  124;  Wallace  v. 
Young,  5  B.  Monr.  155.     Saying,  He  [plaintiff]  has  been  at  different  times  close  abyut 


222  WHAT   OEAL   LANGUAGE  [Cll.  VHT. 

but  charging  one  with  burning  his  own  store,1  or  the  barn 
of  another,  is  not  actionable.2  But  to  charge  one  with 
burning  his  own  store  to  defraud  the  insurers  would  be 
actionable.3 

§  167.  A  general  charge  of forgery  made  orally  is  ac- 
tionable ; 4  and  so  to  charge,  "  You  are  a  rogue,  for  you 
forged  rny  name," 5  or  "  you  signed  my  name  without  my 
permission." 6  But  held  not  actionable  to  say,  "  Thou  hast 
forged  my  hand,"  or  "  thou  are  a  forger."  T  The  writing 
charged  to  have  been  forged  must  it  seems  be  one  which 
if  genuine  would  operate  as  the  foundation  of  another's 
liability.8  It  has  been  held  actionable  to  charge  the 
forgery  of  a  deposition,9  a  warrant,10  a  petition  to  the  legis- 


where  C.'s  gin-house  was  burned,  in  disguise,  held  not  to  amount  to  a  charge  of 
arson,  and  not  actionable.     (Waters  v.  Jones,  3  Port.  442.)     See  ante,  §  144,  subd.  c. 

1  Bloss  v.  Tobey,  2  Pick.  310;  McNab  v.  McGrath,  5  Up.  Can.  Q.  B.  Rep.  O.  S. 
S16  ;  or  a  building  belonging  to  the  wife  of  plaintiff,  but  occupied  by  plaintiff.  (Red- 
way  v.  Gray,  31  Verm.  292.) 

3  Barham  v.  Nethersall,  Yelv.  21;  Bundy  v.  Hart,  46  Mo.  460;  charging  one 
with  burning  a  school-house  was  held  actionable  (Wallace  v.  Young,  5  B.  Monr.  155); 
and  so  of  a  gin-house.     (Waters  v.  Jones.  3  Port.  442.) 

3  1  Am.  Lead.  Cas.  117,  3d  ed. ;  and  see  Tebbets  v.  Goding,  9  Gray,  254;  Bretton 
v.  Anthony,  103  Mass.  37;  contra,  Redway  v.  Gray,  31  Verm.  292. 

4  Alexander  v.  Alexander,  9  Wend.  141 ;  Andrews  *'.  Woodmansee,  15  Wend. 
232;  Nicolls  v.  Hayes,  13  Conn.  155;  Arnold  v.  Cost,  3  Gill  <fe  Johns.  219.  Thou 
hast  forged  a  deed  or  bond  actionable,  but  thou  hast  forged  a  writing  not  actionable 
(Motley  v.  Shiny,  Keb.  273  ;  Austie  v.  Mason.  Cro.  Eliz.  554;  Reynell  v.  Sackfield,  2 
Bulst.  132 ;  Aier  v.  Frost,  Rolle  R.  431 ;  S.  C.  Fro^t  v.  Ayer,  3  Bulst.  265  ;  Andrews 
v.  Bird,  Het.  31),  unless  with  an  innuendo,  a  deed.  (Anon.  Sid.  16;  and  see  Goodale 
v.  Castle,  Cro.  Eliz.  554.)  You  have  falsely  forged  your  father's  hand,  and  thereby 
falsely  have  procured  your  father's  tenants  to  pay  rents  to  you  which  were  due  to 
your  sister,  held  not  actionable.  (Arenard  v.  Woton,  Cro.  Eliz.  166.)  See  ante,  t;  141, 
subd.  k. 

5  Jones  v.  Hearne,  2  Wils.  S7. 

6  Creelman  v.  Marks,  7  Blackf.  2S1. 

7  Via.  Abr.,  Act.  for  Words,  G.  a.  20. 

8  Jackson  v.  Weisiger,  2  B.  Monr.  214.  You  say  you  were  authorized  by  P.  to 
draw  bills  on  him.  You  never  were  authorized ;  if  you  have  any  letters  from  him 
they  are  forged.     These  words  held  not  actionable.     Mills  v.  Taylor,  3  Bibb,  469. 

9  Atkinson  v.  Reding,  5  Blackf.  39 ;  or  forging  writs.  (Hungerford  v.  Watts,  4 
Lev.  181 ;   Sale  v.  Marsh,  Cro.  Eliz.  178;  contra,  Halley  v.  Stanton,  Cro.  Car.  2t">S.) 

10  Stone  v.  Smalcombe,  Cro.  Jac.  648 ;  Thomas  v.  Axworth,  Hob.  2. 


§  168.]  IS   ACTIONABLE.  223 

lature  for  a  grant  of  land ; x  and  so  of  a  letter  containing 
these  words,  "  I  have  to  inform  you  I  have  received  your 
money,  am  1  want  you  to  come  and  receive  it." 2 

§  168.  A  general  charge  of  being  a  murderer,3  or  of 
having  killed  another,  is  actionable.4  Thus  held  action- 
able to  say  "  thou  hast  killed  a  man ; "  5  "  you  killed  my 
brother ; " 6  "  you  killed  one  negro  and  nearly  killed 
another ; "  7  "  George  Button  is  the  man  who  killed  my  hus- 
band ; "  &  "  I  will  call  him  in  question  for  poisoning  his  own 
aunt,  and  make  no  doubt  but  to  prove  he  hath  poisoned 
his  aunt ; " 9  and  the  words  "  he  killed  my  child  ;  it  was 
the  saline  injection  that  did  it,"  with  an  innuendo 
that  it  was  meant  to  charge  the  plaintiff  with  feloniously 

1  Alexander  v.  Alexander,  9  Wend.  14. 

2  Ricks  v.  Cooper,  3  Hawks,  58*7.     See  §  144,  subd.  k,  ante. 

3  Dudley  v.  Robinson,  2  Iredell,  141 ;  Vin.  Abr.,  Act.  for  Words,  G.  a.  11,  ante,  § 
144,  subd.  m.  s.;  but  the  words,  Thou  art  a  murderer  and  a  bloody  fellow,  and  I  am 
afraid  of  you,  were  held  not  actionable.  (Id.  25.)  To  call  one  murderer  because  he 
murdered  a  dog,  no',  actionable ;  dictum,  Waggoner  v.  Richmond,  Wright,  173  ;  see 
note  p.  160,  and  note  2,  p.  184,  ante;  and  the  words  "They  are  highwaymen,  rob- 
bers, and  murderers,"  appearing  to  be  spoken  in  reference  to  a  transaction  not  involv- 
ing robbery  or  murder,  were  held  not  actionable.  (Van  Rensselaer  v.  Dole,  1  Johns. 
Cas.  279.) 

4  Johnson  v.  Robertson,  4  Port.  486 ;  Chandler  v.  Holloway,  id.  18.  It  need  not 
be  alleged  the  party  charged  to  have  been  killed  is  in  fact  dead.  (Carroll  v.  White, 
33  Barb.  618 ;  see  an'e,  notes  1,  p.  174  and  3,  p.  214,  and  §  144,  subd.  m.  s.) 

5  Cooper  v.  Smith,  Cro.  Jac.  423 ;  Banfield  v.  Lincoln,  Fream.  278. 

6  Taylor  v.  Casey,  Minor,  258.  Thou  art  a  rogue  and  rascal,  and  hast  killed  thy 
wife,  held  actionable.     (Wilner  v.  Hold.  Cro.  Car.  489:) 

7  Hays  v.  Hays,  1  Hump.  402. 

8  Button  v.  Hayward,  8  Mod.  24.  Held  actionable  to  say,  Thou  didst  poison  thy 
husband  (Gardiner  v.  Spurdance,  Cro.  Jac.  438  ;)  or,  T  (plaintiff)  killed  thy  husband 
(Toose  Case,  Cro.  Jac.  306) ;  or,  Thou  hast  killed  a  man  (Godfrey  v.  More,  Cro.  Eliz. 
317);  or,  Thon  hast  killed  my  wife  (Talbot's  Case,  Cro.  Eliz.  823);  or,  Thou  hast 
killed  thy  wife  (Wilner  v.  Hold,  Cro.  Car.  489). 

9  Webb  v.  Poore,  Cro.  Eliz.  569.  See  ante,  §  144,  subd.  x.  Not  actionable  to 
say,  "  It  could  be  proved  by  many  violent  presumptions  that  he  (plaintiff)  was  the 
death  of  P."  (Weblin  v.  Meyer,  Yelv.  153;;  or,  "  I  doubt  not  but  to  see  thee  hanged 
for  killing  Mr.  Sydman's  man  who  was  murdered."  (Anon.  Jenk.  302.)  It  was  held 
actionable  to  say,  "Thou  hast  murdered  A.  thy  late  servant."  If  A.  is  not  dead,  or  if 
there  were  no  such  person,  the  scandal  is  the  greater  (Green  v.  Warner,  3  Keb. 
■624) ;  or,  Thou  didst  kill  thy  master's  cook.  (Cooper  v.  Smith,  Cro.  Jac.  423 ;  and 
see  Barons  v.  Ball,  id.  331.) 


224  WHAT    ORAL    LANGUAGE  [Ch.  VHT. 

killing  a   child  by  improperly  and  with  gross  negligence 
and  culpable  want  of  caution  administering  the  injection."1' 

§  160.  A  general  charge  of  being  a  thief2  is  action- 
able, as  to  call  one  "  a  hog  thief,"  3  "a  bloody  thief." 4 
It  is  actionable  to  say  of  one  he  is  "  a  thieving  person,  he 
stole  and  ran  away  ; " 5  or  "  he  is  a  thief,  he  stole  my  wheat 
and  ground  it  and  sold  the  flour  to  the  Indians  ; " 6  or  "  you 
are  a  thief,  you  have  robbed  me  of  my  bricks."  T  The 
charge  is  not  the  less  actionable  because  made  indirectly.8 
Thus  it  was  held  actionable  to  say  "  tell  him  (plaintiff) 
he  is  riding  a  stolen  horse,  and  has  a  stolen  watch  in  his 
pocket ; " 9  or,  "  I  saw  him  take  corn  from  A/s  crib  twice, 
and  look  round  to  see  if  any  person  saw  him  measuring ; " 10 
or,  "  You  get  your  living  by  sneaking  about  when  other 
people  are  asleep.  What  did  you  do  with  the  sheep  you 
killed  ?  Did  you  eat  it  ?  It  was  like  the  beef  you  got  the 
negroes  to  bring  you  at  night.     Where   did  you  get  the 


1  Edsall  v.  Russell,  5  Scott  X.  R.  801  ;  2  Dowl.  N.  S.  614.  4  Man.  <t.  G.  1090; 
and  see  Carroll  v.  White,  33  Barb.  615,  and  ante,  §  144.  The  words  "That  rogue 
Davies,  the  apothecary,  hath  poisoned  my  uncle;  I  will  have  him  digged  up  again, 
and  hang  him,"  held  actionable.     Davies  v.  Okeham.  Sty.  245. 

3  Dudley  v.  Robinson,  2  Iredell.  141  ;  and  see  ante,  note  2,  p.  221;  or  of  having 
been  a  thief,  ante,  note  1,  p.  209  ;  and  see  ?  144,  subd..  p.  r.  z.  bl>.  dd.  ee. 

3  Hogg  v.  Wilson,  1  X.  <fc  M.  (So.  Car.  |,  - 

4  Fisher  v.  Rottereau,  2  McCord,  189. 

5  Alley  v.  Neely,  5  Blackf.  200;  and  see  ante,  note-  2,  p.  221. 

6  Parker  v.  Lewis,  2  Greene  (Iowa),  311. 

7  Sloman  v.  Dutton,  10  Bin^.  402;  4  M.  A:  Sc.  174.  Ayresis  a  thief  and  hath 
stolen  my  apple  trees,  actionable.     Ayres'  Case,  2  BrownL  280. 

8  McKennon  v.  Greer,  2  Watt?,  352;  Miyson  r.  Sheppard,  12  Rich.  Law  (So. 
Car.),  254.  I  believe  he  will  steal,  and  I  believe  he  did  steal,  amount  to  a  charge  of 
larceny.  (Dottarer  if.  Bushev,  1.6  Penn.  St.  R.  2(4;  and  ante,  g  144,  subd.  bb.)  The 
wife  of  B,  was  asked  by  C,  wherefore  will  your  husband  hang  S.  She  answered,  for 
breaking  our  house  in  the  night  and  stealing  our  goods,  held  actionable  although 
spoken  in  answer  to  a  question.  (Hayward  v.  Naylor,  1  Rolle  Abr.  50.)  So  publish- 
ing in  writing  that  certain  property  had  been  stolen,  and  the  thief  was  believed  to  be 
plaintiff,  held  actionable.     (Simmons  v.  Holster,  13  Min.  249.) 

9  Davis  v.  Johnston,  2  Bailey,  5 79. 

10  Jones  v.  McDowell,  4  Bibb,  18S. 


§  170.]  IS    ACTIONABLE.  225 

little  wild  shoats  you  always  have  in  your  pen  \  You  are 
an  infernal  roguish  rascal ; "  !  or,  "  There  is  the  man  who 
stole  my  horse  and  fetched  him  home  this  morning." 2  A 
charge  by  one  partner  against  his  copartner  o  f"  pilfering  " 
out  of  the  store,  held  actionable  ; 3  and  held  actionable  to 
say  of  one  "  he  took  my  wood,  and  is  guilty  of  any  and 
everything  that  is  dishonest ; " 4  or,  "  he  robbed  the  United 
States  mail ;  "  5  and  it  is  actionable  to  charge  one  having 
the  custody  of  goods  with  stealing  them  ; 6  but  held  not 
actionable  to  charge  a  weaver  with  stealing  filling  sent  to  i 
his  house  to  be  woven  into  cloth.7 

§  170.  A  charge  of  larceny,  that  is,  the  taking  animo 
furandl  the  personal  property  of  another,  the  subject  of 
of  larceny,  is  actionable ; 8  thus  the  words,  "  You  have 
stolen  my  belt,"  9  or  "  my  boards," 10  or  "  my  tea,"  u  were 
held  actionable.  And  so  of  the  words  "  You  robbed  me, 
for   I   found   the  thing  you   done  it  with  ;  " 12  or,  "  You 

1  Morgan  v.  Livingston,  2  Rich.  573. 

2  Bonner  v.  Boyd,  3  Har.  <fc  J.  278. 

3  Beckett  v.  Sterrett,  4  Blackf.  499.  Actionable  to  say,  She  is  as  very  a  thief  or 
a  worse  thief  than  any  that  robbeth  by  the  highway.  (Ratcliffe  v.  Shubley,  Cro. 
Eliz.  224.) 

4  Dottarer  v.  Bushey,  16  Penn.  St.  Rep.  204. 

5  Jones  v.  Chapman,  5  Blackf.  88. 

6  Gill  v.  Bright,  6  B.  Monr.  130. 

7  Hawn  v.  Smith,  4  B.  Monr.  385 ;  but  see  ante,  in  note,  p.  173,  and  §  144.  To 
charge  one  with  stealing  cotton  held  actionable,  although  the  charge  was  made  in  al- 
lusion to  cotton  which  the  plaintiff  had  to  gin  for  the  defendant's  brother  (Stokes  v. 
Stuckey,  1  M'Cord,  562) ;  and  as  an  overseer  of  an  estate  may  be  guilty  of  stealing 
the  goods  of  his  employer  entrusted  to  him.  it  was  held  actionable  to  charge  an  over- 
seer with  stealing  corn  of  his  employer.     (Wheatley  v.  Wallis,  '■>  liar.  &  J.  1.) 

"  Galloway  v.  Courtney,  10  Richard.  414;  Blanchard  v.  Fisk,  2  N.  H.  398;  Bonner 
v.  Boyd,  3  Ear.  <fe  Johns.  278;  Wheatley  v.  Wallace,:;  id.  1;  stokes  v.  Stuckey,  1 
M'Cord,  562  ;  Gill  v.  Bright,  6  B.  Monroe,  130  ;  Gaul  *'.  Fleming,  10  Ind.  263  ;  and  see 
ante,  %  144,  subd.  p.  z.  lb.  dd.  ce.  and  note  3,  p.  214.  A  charge  of  taking  clothes  animo 
furavdi  from  a  dead  body,  hold  acta  liable.     (Wonson  v.  Sayward,  13  Pick.  402.) 

9  St.  Martin  v.  Desnoyer,  1  Min.  156;  and  ro  of  the  words,  Thou  host  stolen  my 
goods,  and  I  will  have  thy  neck.     (Fleming  v.  Jales,  2  Erjwal.  230.) 

10  Burbank  v.  Horn,  39  Maine  (4  Heath),  232. 

11  Coleman  v.  Playstead,  36  Earb.  26. 

12  Rowcliffe  <•.  Edmonds,  7  M.  &  W.  12. 


226  WHAT    ORAL    LANGUAGE  [Ch.  VIII. 

robbed  W. ; " 1  but  the  words  "  He  robbed  the  treasury 
and  bought  a  farm  with  it,2  or  "Bear  witness  he  hath 
stolen  my  cloth,"  held  not  actionable.3  Charging  plaintiff 
with  having  stolen  a  barrel  of  pork  may  or  may  not  be 
actionable,  according  to  the  circumstances  of  the  publica- 
tion ; 4  but  semble  to  render  them  non-actionable  it  must 
appear  that  the  facts  could  not  in  any  view  amount  to  a 
felony.5  Where  the  words  were  "  I  have  lost  a  calf-skin 
out  of  my  cellar.  *  *  *  There  was  no  one  in  the 
cellar  but  you,  Bornman  and  Gray.  I  do  not  blame  you 
nor  Gray,  but  Bornman  must  have  taken  it,"  they  were 
held  actionable.6  Charging  one  with  stealing  a  key  out 
of  the  lock  of  a  door,  held  actionable.7     By  the  laws  of 

1  Tomlinson  v.  Brittlebank,  1  Nev.  &  M.  455 ;  4  B.  &  Adol.  630.  Tbou  bast 
robbed  the  church,  and  thou  hast  stolen  the  lead  off  from  the  church,  held  actionable. 
(Benson  v.  Morley,  Cro.  Jac.  153.)  And  so  of  the  words:  He  hath  robbed  the  church. 
(Sibthorpe's  Case,  Jones,  366.) 

2  Allen  v.  Hillman,  12  Pick.  101,  and  see  in  §  144,  subd.  z. 
s  Bury  v.  Wright,  Yelv.   126. 

4  Phillips  v.  Barber,  7  "Wend.  439;  and  see  §  144.  You  (plaintiff)  have  stolen  a 
file  of  bills  out  of  my  desk,  with  an  innuendo  that  by  file  of  bills  was  intended  a  tile 
of  unsatisfied  accounts,  held  not  actionable.     (Blanchard  v.  Fisk,  2  N.  Hamp.  398.) 

5  Laurie  v.  Wells,  7  Wend.  175;  Alexander  v.  Alexander,  9  id.  141;  Case  >•. 
Buckley,  15  id.  327.  B.  spoke  of  A.,  that  A  and  B.  and  one  C.  sat  down  to  gamble 
in  a  house  in  D.,  and  while  there,  C.  took  from  his  pocket-book  a  five  dollar  bill  and 
proposed  to  bet  one  dollar ;  that  after  the  bill  was  put  down  on  a  chance  it  was 
missing,  and  search  was  made  for  it  but  it  could  not  be  found,  whereupon  the  parties 
agreed  to  submit  to  a  search,  which  was  made  but  the  bill  was  not  found ;  that  after 
this  search,  all  the  parties  went  out  of  the  house  to  search  for  the  missing  bill ;  near 
the  window  they  found  a  pocket-book  with  the  clasp  unfastened,  and  in  it  was  the 
missing  bill;  that  C.  took  out  the  bill  and  banded  the  pocket-book  to  A.,  who  took  it, 
and  then  said,  "  Boys,  don't  tell  this  on  me.  for  if  you  do  it  will  ruin  me."  Held 
that  these  words  did  not  of  themselves,  import  a  charge  of  larceny.  (Prichard  v. 
Lloyd,  2  Carter.  154.) 

6  Bornman  v.  Boyer,  3  Binn.  515 ;  ante,  i  144,  subd.  dd. 

7  Hoskins  v.  Tarrence,  5  Blaekf.  417,  this  decision  was  on  the  hypothesis  that 
stealing  a  key  out  of  the  lock  of  a  door  is  larceny.  It  was  S3  held  in  Rex  v.  Hedges, 
1  Leach  C  G  201,  4  ed.,  but  is  said  to  be  "  clearly  wrong."  Heard  on  Libel,  p.  37, 
note  4.  Actionable  to  say:  You  never  thought  well  of  me  since  G.  [  plaintiff]  did 
steal  my  lamb  (Grave's  Case,  Cro.  Eliz.  2S9);  or,  I  dealt  not  so  unkindly  by  you 
[  plaintiff]  when  you  stole  a  sack  of  corn.  (Cooper  w.  Hakewell,  2  Mod.  58  )  J  W. 
[  plaintiff]  was  in  question  for  stealing  a  mare,  and  hue  and  cry  went  out  after  him, 
and  he  durst   not  show  his  face  hereabouts,  doubtful  if  actionable.     (Gray  o.  Wnylo. 


§  171.]  IS    ACTIONABLE.  227 

Pennsylvanvia  taking  and  carrying  away  fruits,  vegetables, 
<fec,  whether  attached  to  the  soil  or  not,  is  a  misdemeanor, 
yet  where  the  words  were  "  Mrs.  Reynolds  has  stolen 
corn  out  of  Gubbles'  field,"  "he  was  confident,  Pat.  Rey- 
nolds' wife  stole  Gubbles'  corn,"  held  the  words  were  not 
actionable,  if  they  referred  to  growing  corn.1  "  He  sheared 
two  of  Zack.  Austin's  sheep,"  "  He  sheared  two  of  Zack. 
Austin's  sheep  and  kept  the  wool,"  with  an  innuendo  that 
a  larceny  was  intended,  but  without  any  colloquium  held 
not  actionable.2  An  action  will  not  lie,  without  allegation 
of  special  damage  for  the  words,  "you  had  a  share  in 
breaking  into  the  store,"  alleged  to  refer  to  a  robbery  of 
a  store  belonging  to  the  plaintiff  and  defendant  as  co-part- 
ners.3 

§  171.     A   direct  charge  of  perjury  is  actionable  per 
sef   and   it   is  actionable  to  say  of  one,   "  The  Reverend 

Sty.  159.)  A.  said  to  B.  [the  defendant].  My  sheep  were  feloniously  stolen  away; 
B.  replied,  I  know  who  took  them — it  was  J.  S. ;  held  actionable.  (Helly  v.  Hender, 
3  Bulst.  83.)  Go  follow  suit  against  W.  [  the  plaintiff]  for  stealing  thy  two  kine,  and 
hang  him — held  actionable.  (Willymote  v.  Welton,  Cro.  Eliz.  904.)  So  were  tbe 
words,  "  He  is  infected  of  the  robbery  and  murder  lately  committed,  and  doth  smell 
of  the  murder."  (Hawley  v.  Sidenham,  Vin.  Ahr.  Act.  for  Words,  P.  a.  14.)  You 
might  have  known  your  own  sheep  and  not  have  stolen  mine,  court  divided  if  action- 
able or  not.  (Thompson  v.  Knott,  Telv.  144.)  Thou  [plaintiff]  hast  stole  my  mare 
or  was  consenting  to  it,  held  not  actionable  ;  the  plaintiff  might  consent  and  yet  be 
faultless,  and  the  latter  part  of  the  sentence  controlled  the  first.  (Anon.,  Noy,  172.) 
S.  [plaintiff]  did  steal  a  mare,  or  else  G.  is  forsworn,  not  actionable,  not  being  a 
a  direct  charge  of  stealing.  (Sparkkani  w.  Pye,  Cro.  Jac.  532.)  So  the  words  "  you 
as  good  as  stole  the  canoe  of  J.  H.,"  were  held  not  actionable  per  se  (Stokes  v.  Arey, 
8  Jones  L.  (N.  Car.)  66. 

1  Stitzell  v.  Reynolds,  9  P.  F.  Smith,  488. 

2  Brown  v.  Piner,  6  Ky.  (Bush),  596. 

3  Aefele  v.  Wright,  17  Ohio,  238. 

.  4  Newbit  v.  Statuck,  35  Maine  (5  Red.),  315;  Dell  v.  Farnsworth,  11  Humph.  608; 
Eccles  v.  Shannon,  4  Harring.  193;  Cook  v.  Bostwick,  12  Wend.  48;  Hopkins  v. 
Beadle,  1  Cai.  347 ;  Kern  v.  Towsley,  51  Barb.  385  ;  Gorton  v.  Keeler,  id.  475 ; 
Commons  v.  Walters,  1  Port.  377;  Hall  v.  Montgomery,  8  Ala.  510;  Haws  v.  Stan- 
ford, 4  Sneed,  520;  Lee  v.  Robertson,  1  Stew.  138  ;  Chapman  v.  Gillett,  2  Conn.  40; 
as  to  perjured  knave,  see  note  11,  p.  221  ante.  A.,  speaking  with  reference  to  a  complaint 
preferred  by  him  before  the  grand  jury  against  B.,  said  that  "  he  went  before  the 
grand  jury  and  asked  them  if  they  wanted  any  more  witnesses,  and  they  said  they 
had  witnesses  enough  to  satisfy  them ; "  held,  actionable,  if  he  thereby  meant  to  im- 
pute  the  perjury   to  B.     (Run  It'll  v.  Hutler,    7   Barb.  253.)     Saying  of  plaintiff  he 


228  WHAT    ORAL   LANGUAGE  [Ch.  Vffl. 

Thomas  Smith  is  a  perjured  man,"1  or  "He  perjured 
himself," 2  or  "  He  committed  perjury  by  swearing  in  his 
vote  at  the  school  district  meeting ; 3  and  where  the 
defendant,  speaking  of  an  allegation  in  an  affidavit  made 
by  the  plaintiff,  said  it  was  not  true  and  plaintiff  had 
perjured  himself,  was  held  to  be  actionable  if  the  intent 
was  to  impute  perjury.4  The  words  "he  swore  a  false 
oath,"  or  "  he  swore  a  lie,"  or  "  he  swore  false,"  are  not 
actionable  per  se,  nor  can  an  action  be  maintained  for  them 
merely  by  an  innuendo  that  they  imputed  or  were  intended 
to  impute,  perjury.  There  must  be  an  averment  and 
colloquium  of  a  judicial  proceeding.5    To  say  of  one,  he 

was  under  a  charge  of  prosecution  for  perjury,  and  that  G.  W.  (an  attorney  of  that 
name)  had  the  attorney-general's  directions  to  prosecute  the  plaintiff  for  perjury, 
held  actionable  after  verdict  for  plaintiff.  (Roberts  v.  Camden,  9  East,  93.)  And 
saying  "I  would  not  swear  to  what  C.  W.  has  for  the  town  of  R. ;  P.  W.  is  honestly 
mistaken  but  C.  W.  is  wilful,"  imputes  perjury  to  C.  W.  and  is  actionable.  (Walrath 
v.  Nellis,  17  How.  Pr.  R.  72.)  See  ante,  §  144  subd.  u.  A  charge  of  subornation 
of  perjury  is  actionable  (Cro.  Jac.  158;  Beers  v.  Strong,  Kirby,  12);  as,  You  hare 
caused  this  boy  to  perjure  himself  (Brownl.  2). 

1  Cummin  v.  Smith,  2  S.  <fe  R.  440. 

5  Sandford  v.  Gaddis,  13  111.  329.  I  will  prove  tbee  a  perjured  knave,  actionable. 
(Staverton  v.  Relfe,  Yelv.  160.)  0.  [plaintiff]  says  I  am  a  perjured  rogue;  he  is  a 
perjured  rogue  as  well  as  I — held  actionable.  (Orton  v.  Fuller,  Lev.  65.)  If  I  list  I 
can  prove  him  perjured — held  not  to  impute  perjury,  and  therefore  not  actionable. 
(Davis' Case,  Hutt.  127.) 

3  Crawford  v.  Wilson,  4  Barb.  504. 

4  Cook  v.  Bostwick,  12  Wend.  48.  The  words  "  he  has  delivered  false  evidence 
and  untruths  in  his  answer  to  a  bill  in  chancery,"  held  not  actionable.  (1  Rolle  Abr. 
70;  3  Inst.  167.)  Where  the  allegation  was  "we  have  no  reply  to  make  to  a  lad 
[  plaintiff]  convicted  of  perjury,  by  the  solemn  oath  of  a  gentleman,  whose  veracity 
is  unimpeached,"  and  the  context  showed  that,  by  convicted  it  was  really  meant  that 
the  plaintiff  was  contradicted  by  the  gentleman  referred  to,  held  error  to  instruct  the 
jury  that  the  charge,  "  convicted  of  perjury,"  was  actionable,  per  se,  as  such  instruc- 
tion implied  that  the  charge  was  of  technical  perjury.  (I'ugh  v.  McCarty,  40  Geo. 
444.) 

5  Packer  v.  Spangler,  2  Binn.  60 ;  Sheely  v.  Biggs,  2  Har.  «fc  J.  363 ;  Power  v. 
Miller,  2  McCord,  220;  Martin  v.  Milton,  4  Bibb,  99;  Sluder  v.  Wilson,  10  Ire.  92  : 
Beswick  v.  Chappel,  8  B.  Mon.  486  ;  Roella  v.  Follow,  7  Blackf.  377  :  Vaughan  v. 
Havens,  8  Johns.  109;  Chapman  v.  Smith,  18  Johns.  78;  Hopkins  v.  Beadle,  1  Oai 
347;  Phinele  v.  Vaughan,  12  Barb.  215;  Barger  v.  Barger,  18  Penn.  State  Rep 
Blair  v.  Sharp,  Breese,  11;  McManus  v.  Jackson,  28  Miss.  (7  Jones)  56;  Watson  v. 
Hampton,  2  Bibb.  319;  Shinloub  v.  Ammerman,  7  Ind.  347  ;  Mebane  v.  Sellars,  3 
Jones'  Law  (N.  Car.),  199  :  Harris  ».  Woody.  9  Mis.  1 13  ;  Horn  v.  Foster.  19  Ark.  346  ; 


§  172.]  IS    ACTIONABLE.  229 

is  "mainsworn,"  was  held  actionable  when  spoken  at  a 
place  where  mainsworn  meant  perjured.1  A  charge  of 
being  forsworn  is  not  actionable  per  se  ;  it  imports  only 
"false  swearing,"  and  not  "perjury."  But  a  charge  of 
"  false  swearing  "  may  convey  to  the  minds  of  the  hearer 
an  imputation  of  perjury,  and  when  it  does  such  a 
charge  is  actionable  per  se,'2  as  where,  after  a  charge 
of  false  swearing,  the  defendant  added  "I  will  attend 
to  the  grand  jury  about  it  ;"3  or,  "  If  you  had  your  deserts 
you  would  have  been  dealt  with  in  the  time  of  it ;  " 4  or, 
"  For  which  you  would  now  stand  indicted ; " 5  or,  "  To 
my  injury  $600  ; " 6  or,  "  and  done  it  meaning  to  cut  my 
throat ; "  T  or,  "  and  I  will  put  him  through  for  it  if  it  costs 
me  all  I  am  worth." 8     And  held  actionable  to  say  of  one, 


Harvey  v.  Boies,  1  Penn.  12  ;  Dalrymple  v.  Lofton,  2  Speer,  58S  ;  Shaffer  v.  Knitzer 
1  Binn.  537  ;  Hall  v.  Montgomery,  8  Ala.  510;  Walrath  v.  Nellis,  17  How.  Pr.  R.  72; 
Ward  v.  Clark,  2  Johns.  10 ;  Stafford  v.  Grier,  1  Johns.  505 ;  Robertson  v.  Lea,  1 
Stew.  141,  but  see  Rue  v.  Mitchell,  2  Dail.  58;  Canterbury  a.  Hill,  4  Stew.  &  Porter, 
224;  Smale?>.  Hammon,  1  Bulst.  40;  Lewis  v.  Soule,  3  Mich.  514  ;  Hall  v.  Weedon, 
8  Dowl.  &  R.  140;  Colomes'  Case,  Cro.  Jac.  204.  "Mr.  H.'s  oath  is  not  be  taken,  for 
he  has  been  a  forsworn  man.  I  can  bring  people  to  prove  it,  and  they  that  know  him 
will  not  sit  in  the  jury-box  with  him."  "Without  any  colloquium,  referring  the  words 
to  the  conduct  of  the  plaint. ff  as  a  juryman,  and  no  special  damage,  held  not  in  them- 
selves actionable,  and  judgment  arrested.  (Hall  v.  Weedon,  8  D.  &  R,  140.)  "Stan- 
hope hath  but  one  manor,  and  that  he  got  by  swearing  and  forswearing."  (Stanhope 
v.  Blith,  4  Co.  15.)  In  Arkansas,  by  statute,  to  charge  a  person  with  having  sworn 
falsely  or  sworn  a  lie  is  actionable,  without  an  averment  or  proof  of  special  damage, 
or  a  cMoijuium.  (Carlock  v.  Spencer,  2  Eng.  12 ;  McGough  w.  Rhodes,  7  Eng.  625.) 
And  so  in  Mississippi.  Crawford  v.  Mellton,  12  S.  &  M.  328.  See  ante,  §  153. 
'Hob.  12. 

9  Sherwood  v.  Chace,  11  Wend.  38 ;  Crookshank  v.  Gray,  20  Johns.  344 ;  McClaughry 
v.  Wetmore,  6  Johns.  82;  Jacobs  v.  Fyler,  3  Hill,  572;  Coons  v.  Robinson,  3  Barb. 
625;  Morgan  v.  Livingson,  2  Rich.  573;  IIdlhou3e  v.  Dunning,  6  Conn.  391. 
Defendant  said,  Thou  art  a  /•>rsworn  fellow;  plaintiff  answered,  Will  you  say  that  I 
am  p  rjured?  defendant  sahl,  Yes.  if  you  will  have  it  so — held  not  actionable. 
(Levurmore  v.  Martin,  Cro.  Eliz.  297.) 

3  Gilman  v.  Lowell,  8  Wend.  573. 

4  Phincle  v.  Vaughan,  12  Barb.  215. 
6  I'eltan  v.  War  J.,  3  Cai.  73. 

6  Jacobs  v.  Fyler,  3  Hill,  572. 
1  Coons  v.  Robinson,  3  Barb.  625. 
*  Come  v.  Angell,  14  Mich  340. 


230  WHAT    ORAL   LANGUAGE  [Cll.  VIII. 

"  Thou  art  a  forsworn  man.  I  will  teach  thee  the  price  of 
an  oath,  and  will  set  thee  on  the  pillory ;  " 1  or,  "  You  swore 
a  lie,  and  I  can  prove  it,"  used  in  reference  to  a  judicial 
proceeding  in  which  the  plaintiff  had  testified  as  a  wit- 
ness ; 2  or,  under  similar  circumstances,  the  words,  "  He 
swore  a  lie." 3  Where  the  charge  is  of  false  swearing 
before  a  particular  court  or  tribunal,  or  in  a  particular 
proceeding,  naming  it,  the  charge  is  actionable  if  the  court 
or  tribunal  named  is  one  authorized  to  administer  an  oath, 
or  if  the  proceeding  named  is  a  judicial  proceeding ;  thus 
it  has  been  held  actionable  to  say  of  one,  he  swore  false 
before  the  grand  jury  ; 4  or,  "Thou  art  a  forsworn  knave, 
and  I  will  prove  thee  to  be  forsworn  in  the  spiritual 
court ; " 5  or,  "  Thou  wast  forsworn  before  my  Lord  Chief 
Justice  in  evidence ; " 6  or  "  before  a  justice  of  the  peace ; " r 
or,  "  in  Hston  Court,"  a  court  leet  so  named  ; 8  or,  "  I  had 
a  lawsuit  with  A.,  and  B.  (the  plaintiff)  swore  falsely 
against  me,  and  I  have  advertised  him  as  such  ;"9  or, 
"You  swore  false  at  the  trial  of  your  brother  John."10 
Held  not    actionable   to   say  of  one,    "  Thou   wert    for- 


1  1   Starkie  on  Slander,  91. 

a  Lewis  v.  Black,  27  Mass.  (5  Cash.)  425;  Rhineheart  v.  Potts,  7  Ired.  403; 
Rainey  v.  Thornbury,  7  B.  Monr.  475;  Sherwood  v.  Cliace,  11  Wend.  3S. 

3  Harris  v.  Purely,  1  Stew.  231 ;  and  see  Wilson  v.  Harding,  2  Blackf.  190  ;  Gibbs 
v.  Tucker,  2  A.  K.  Marsh,  219;  and  6  T.  R.  691. 

4  Perselly  v.  Bacon,  20  Miss.  330. 

'  Shaw  ».  Thompson,  Cro.  Eliz.  609;  and  see  Rex  v.  Foster,  Russ.  <fe  R.  Cr.  Cas. 
Res.  459  ;  Stat.  40  Geo.  4,  ch.  76.  False  swearing  before  an  ecclesiastical  tribunal  is 
not  perjury  in  Pennsylvania.  (Harvey  v.  Boies,  1  Penns.  12.)  contra  in  Connecticut. 
(Chapman  v.  Gillet,  2  Conn.  40.) 

6  Le.  127. 

1  Gurneth  v.  Derry,  3  Lev.  166 :  4  Coke,  17. 

8  Marshall  v.  Dean,  Cro.  Eliz.  720. 

8  Magee  v.  Stark,  1  Hump.  506.  The  words,  I  had  a  lawsuit,  imply  a  judicial 
proceeding.      (Id.) 

10  Fowle  v.  Robbins,  12  Mas?.  49S.  The  words  were  held  actionable  after  ver- 
dict ;  and  see  Cro.  Car.  378  ;  but  the  words,  you  swore  falsely  on  the  trial  of  a  case 
between  me  and  A.  before  Squire  J.,  were  held  not  actionable.  (Dalrymple  v.  Lofton. 
2  Speer,  588.) 


§171.]  IS   ACTIONABLE.  231 

sworn  at  Whitechurcli  court;"1  or  "Thou  art  a  false  and 
forsworn  knave,  and  that  I  will  prove,  for  thou  forswore 
thyself  against  Peter  Ruinball  in  the  hundred  court." 2  An 
arbitration  is  a  judicial  proceeding,  and  false  swearing  in 
such  a  proceeding  is  perjury;  therefore,  to  charge  false 
swearing  in  such  a  proceeding  is  actionable ; 3  but  perjury 
cannot  be  predicated  of  evidence  in  a  controversy  relative 
to  pre-emption  rights  before  the  registers,  &c,  of  the  land 
office,  and  therefore  a  charge  of  false  swearing  in  such  a 

/  CO 

controversy  is  not  actionable.4  Ordinarily  words  are  ac- 
tionable which  imply  in  their  customary  import  that  a 
false  oath  has  been  taken  in  a  judicial  proceeding,5  as,  you 
swore  false  in  court,6  and  "this,  although  the  proceeding 
referred  to  never  had  any  existence.7  Saying  of  one,  he 
swore  to  a  damned  lie,  but  I  am  not  liable  because  I  have 
not   said  in  what  suit  he  testified,  was   held  not  action- 


1  Cro,  Car.  37S,  because  it  did  not  appear  that  Whitechurcli  court  was  a  court  of 
record,  and  for  the  same  reason  the  words  "  He  has  forsworn  himself  in  a  Leake 
court,"  were  held  not  actionable.  (1  Rolle  Abr.  39;  6  Bac.  Abr.  20*7.  See  Dal  ton 
v.  Higgins,  34  Geo  433.)  But  the  words,  "A.  C.  is  a  forsworn  man,  and  hath  taken 
a  false  oath  in  his  deposition  at  Tiverton,  where  he  waged  his  law  against  me,"  were 
held  actionable  because  the  forswearing  appeared  to  amount  to  perjury.  (Cro.  Jac. 
204.) 

2  Core  v.  Morton,  Yelv.  27.     So  ruled  after  verdict. 

3  Moore  v.  Horner,  4  Sneed,  491 ;  Eoss  v.  Rouse,  1  Wend.  475;  Bullock  v.  Koon, 
9  Cow.  30;  and  see  Sandford  v.  Gaddis,  13  111.  329. 

4  Hall  v.  Montgomery,  8  Ala.  510.  Held  not  actionable  to  charge  a  voter  with 
swearing  falsely  at  an  election  for  alderman  for  the  City  of  Toronto.  (Thomas  v. 
Piatt,  1  Up.  Can.  Q.  B.  217.)  Where  the  imputation  was  that  plaintiff  had  taken 
a  false  oath,  but  not  in  a  judicial  proceeding,  the  plaintiff  had  a  verdict  for  £2.  10 
damages.  The  court  refused  a  new  trial,  but  arrested  the  judgment,  the  words  not 
being  actionable.     (Ilogle  v.  Hogle,  16  Up.  Can.  Q.  B.  518.) 

5  Cass  v.  Anderson,  33  Verm.  182. 

6  Hamilton  v.  Dent.  1  Hayw.  (N.  Car.)  116;  see  ante,  note  10,  p.  230. 

7  Bricker  v.  Potts,  12  Penn.  St.  R.  200;  Henry  v.  Hamilton,  7  Elackf.  506.  And 
though  an  affidavit  for  a  warrant  be  insufficient  to  justify  the  granting  of  it,  an  action 
may  be  maintained  for  imputing  perjury  in  making  the  affidavit,  if  any  fact  set  forth 
in  it  be  mater ;al  to  the  application.  (Dayton  v.  Rockwell,  11  Wend.  140;  and  see 
Bell  v.  Farnsworth,  11  Humph.  608.)  Slander  will  lie  on  an  accusation  of  perjury 
in  a  criminal  cause,  although  the  complaint  therein  was  too  defective  for  an  irrever- 
sible judgment.     (Wood  v.  South  wick,  96  Mass.  354.) 


232  WHAT    ORAL   LANGUAGE  [Ch.  VIII. 

able.1  To  say  to  a  witness  whilst  giving  his  testimony 
on  a  trial  in  court,  "  that  is  a  lie ; 2  or,  "  I  believe  you 
swear  false.  It  is  false  what  you  say ;  " 3  or,  "  You  have 
sworn  a  manifest  lie,"  4  is  actionable. 

Swearing  falsely  as  to  immaterial  matter  does  not 
amount  to  perjury,  and  therefore  to  charge  false  swearing 
as  respects  matter  which  is  immaterial  to  the  issue  in- 
volved, cannot  in  any  event  or  under  any  circumstances, 
be  actionable  ; 5  thus,  saying  of  one  that  on  a  certain  trial 
he  testified  to  what  was  false,  that  the  matter  so  testified 
to  was  immaterial,  but  that  he,  the  party  testifying, 
showed  great  disregard  for  the  truth,  was  held  not  ac- 
tionable.6 The  test  of  materiality  is  not  whether  the  wit- 
ness believes  his  testimony  to  be  material,  but  whether  if 
false  he  can  be  indicted  for  perjury.  If  the  testimony  is 
in  fact  immaterial,  it  cannot  be  perjury,  though  it  may  be 
false,  and  whatever  may  be  the  opinion  of  the  witness.7 
Another  essential  element  of  perjury  is,  that  the  oath  al- 
leged to  have  been  broken  was  administered  by  competent 
authority,  and  therefore  to  charge  the  breach  of  an  oath 
not  administered  by  competent  authority  would  not  be 
actionable.8     [§§  321,  322.] 

1  Muchler  v.  Mulhollen,  Supp.  to  Hill  &  Denio's  Rep.  263. 

-  Mower  v.  Watson,  11  Verm.  536.  Probably  not  actionable  to  say,  "  He  swore 
toalie  if  be  swore  as  Jones  said  be  did."  (Evartsti.  Smith,  19  Mich.  55.)  See  $22A  post. 

3  Cole  v.  Grant,  3  Harr.  327. 

4  Keane  v.  McLaughan,  2  S.  &  R.  469;  McClaughry  v.  Wetniore,  6  Johns.  82 
contra  Badgley  v.  Hedges,  1  Penns.  233. 

6  Horn  v.  Foster,  19  Ark,  346;  Darling  v.  Banks,  14  Dl.  47;  Wilson  v.  Olipbant 
Wright.  153;  Crookshank  v.  Gray,  20  Johns.  344;  Ross  v.  Rouse,  1  Wend.  475; 
Dayton  ».  Rockwell,  11  Wend.  140;  Power  v.  Price,  12  Wend.  500,  S.  C.  16  Wend 
450;  Roberts  v.  Chaplin,  14  Wend.  123;  Wilson  v.  Cloud,  2  Speer,  1;  Owen  a. 
McKean,  14  111.  459;   M'Gougb  v.  Rhodes,  7  Eng.  625. 

6  Stone  v.  Clark,  21  Pick.  51 ;  and  S3e  McKinley  v.  Rob,  20  Johns,  351 ;  Smith  t». 
Smith,  8  Ired.  29 ;  Wilson  v.  Cloud,  2  Speer,  1. 

7  Ross  i'.  Rouse,  1  Wend.  475.  Perjury  may  be  alleged  in  swearing  to  a  promise 
within  tbe  statute  of  frauds,  and  therefore  false  swearing  as  to  such  a  promise  may 
be  actionable.    (Howard  v.  Sexton,  8  N.  Y.  157.) 

9  Jones   v.  Marrs,  11  Humph.  214;    Dalton  v.    Higgins,   34  Geo.   433;  and  see 


172.] 


IS   ACTIONABLE.  233 


§  172.  Ordinarily,  and  in  the  absence  of  any  statutory 
provision  (§  153,)  words  published  orally  charging  a 
woman  with  want  of  chastity  are  not  actionable  per  se  ;  1 
as,  thus,  except  in  the  City  of  London  and  Borough  of 
Southward  it  is  not  actionable  to  call  a  woman  a  whore,2 


Vansteenburgh  v.  Kortz,  10  Johns.  167 ;  Xiven  v.  Munn,  13  Johns.  48  ;  Cro.  Car.  378; 

1  Rolle  Abr.  39. 

1  1  Starkie  on  Slander,  28  ;  Byron  v.  Ernies,  2  Salk.  693 ;  W.  v.  L.,  2  Nev.  «fe  M.  204  ; 
Berry  v.  Carter,  4  Stew.  <fc  Port,  387 ;  Eliot  v.  Ailsbury,  2  Bibb,  473 ;  Keiler  v.  Lessford, 

2  Cr.  C.  C.  190;  Ranger  v.  Goodrich,  17  Wis.  78;  Rogers  v.  Lacey,  23  Ind.  507; 
contra  in  Connecticut  (Frisbie  v.  Fowler,  2  Conn.  707),  in  Kentucky,  since  the  statute  of 
1811  (McGee  v.  Wilson,  Litt.  Sel.  Cas.  187;  Smalley  v.  Anderson,  2  Monr.  56),  in 
Illinois  (Spencer  v.  M'Masters,  16  111.  405),  in  Missouri  (Moberly  v.  Preston,  8  Mis. 
462;  Stieber  v.  Wensel,  19  Mis.  513),  in  Ohio  (Malone  v.  Stewart,  15  Ohio,  319  ;  Wil- 
son v.  Robbins,  Wright,  40 ;  Wilson  v.  Runyan,  id.  351;  Sexton  v.  Todd,  id.  317), 
in  Maryland  (Terr}'  v.  Bright,  4  Md.  430),  in  Alabama  (Sidgreaves  w.  Myatt,  22  Ala. 
617;  but  see  Berry  v.  Carter,  4  Stew,  k,  Port.  387),  in  Indiana,  (Shields  i1.  Cunning- 
ham, 1  Blackf.  86;  Worth  v.  Butler,  7  id.  251;  Rodeburg  v.  Hollingsworth,  6  Ind. 
639;  Rodgers  v.  Lacey,  23  Ind.  507;  Linck  v.  Kelley,  25  Ind.  278;  Blinkenstaff  v. 
Perrin,  27  Ind.  527),  in  North  Carolina  (McBrayer  v.  Hill,  4  Ired.  136;  Snow  v. 
Witcher,  9  id^  346),  in  South  Carolina  (Watts  v.  Greenlee,  2  Dev.  115;  Freeman  v. 
Price,  2  Bailey,  115),  in  Iowa  (Beardsley  v.  Bridgman,  17  Iowa,  290;  Cleveland  v. 
Detweiler,  18  it/.  299;  Cox  v.  Bunker,  Morris,  369;  Dailey  v.  Reynolds,  4  G.  Greene, 
354;  Freeman  v.  Taylor,  4  Iowa,  424  ;  Smith  v.  Silence,  id.  321.) 

2  12  Mod.  106;  Holt  R.  40;  Keb.  418;  Sid.  97;  Robertson  v.  Powell,  2  Selw. 
N.  P.  1224;  Alsop  o.  Alsop,  5  Hurl.  &  Nor.  5534;  Williams  v.  Holdridge,  22  Barb. 
397;  Linneyv.  Malton,  13  Texas,  449;  Underhillv.  Welton,  32  Verm.  40;  Boyd  v. 
Brent,  3  Brev.  241 ;  contra,  Pledger  v.  Hatchcock,  1  Kelly,  550 ;  Cox  v.  Bunker,  1 
Morris,  269.  Drunken  whore  held  actionable  (Williams  v.  Greenwade,  3  Dana,  432) ; 
and  so  was  whore.  (Smith  v.  Silence,  4  Iowa,  321;  Kelly  v.  Dillon,  5  Ind.  426; 
Clarke  v.  Mount,  Opinions  in  the  Mayor's  C't,  18.)  The  following  words  have  been 
held  actionable :  You  are  a  whore.  I  can  have  a  better  whore  for  a  groat;  you  get 
your  living  by  your  tail ;  or,  You  are  a  whore,  and  have  played  the  whore  with  so 
many  men  you  cannot  number  them;  or,  Thou  art  a  whore  and  hast  been  carted; 
or,  Thou  art  a  whore  and  hast  been  in  Bridewell ;  or,  Thou  art  a  whore,  and  hast 
emptied  thy  cask  in  the  country;  or,  Thou  art  a  whore,  and  thy  plying  place  is  in 
Cheapside,  where  thou  gettest  40s.  a  day.  (Vin.  Abr.  Act.  for  Words.  D.  a.  (•">.  89, 
42.)  The  words  import  more  than  the  bare  calling  a  woman  whore.  (Hicks  v.  Joyce, 
Sty.  394.)  Common  whore  held  actionable  (Green  v.  How,  Sty.  323.)  Ami  held 
actionable  to  call  one  a  whore  who  held  a  copyhold  dum  casta  vixerit  (Boys  v.  Boys, 
Sid.  214.)  But  held  not  actionable  to  say  to  or  of  a  woman,  "  You  are  a  whore,  and 
keep  a  man  to  lie  with  you"  (Gascoigne  v.  Ambler,  2  L'd  Raym.  1004);  or,  "She 
is  a  whore,  and  had  a  bastard  by  her  father's  apprentice."  (Graves  v.  Blanchard,  2 
Salk.  696  ;  and  see  Anon.  id.  694.)  Calling  a  woman  "  whorish  bitch,"  actionable  in 
Alabama.  (Scott  v.  McKinnish,  15  Ala.  662.)  To  call  a  woman  a  strumpet  is  not 
equivalent  to  calling  her  a  whore.     (Williams  v.  Bryant,  4  Ala.  44 ;  contra,  Cook  v. 

16 


234  WHAT   ORAL   LANGUAGE  [Ch.   "V  111. 

or  prostitute,  or  common  prostitute,1  or  to  charge  an  un- 
married woman  with  having  had  a  bastard,2  or  to  call  a 
woman  a  bawd,3  or  to  charge  an  unmarried  woman  with 
fornication,4  or  a  married  woman  with  adultery,5  or  a 
woman  with  being  of  a  wanton  and  lascivious  disposition,6 
or  to  say  of  a  woman,  she  was  hired  to  swear  the  child  on 
me ;  she  has  had  a  child  before  this,  when  she  went  to 
Canada ;  she  would  come  damned  near  going  to  the  state 
prison.7  But  it  has  been  held  actionable  to  say  of  a  woman, 
she  is  a  "  loose  woman,"  8  or  to  charge  conduct  amounting 
to  open  and  gross  lewdness,9  or  to  say  of  a  married  woman, 
she  slept  with  one  not  her  husband,10  or  to  charge  an  un- 


Wingfield,  1  Stra.  555.)    By  custom  in  the  city  of  Bristol  it  is  actionable  to  call  a 
woman  strumpet.     (Power  v.  Shaw,  1  Wils.  62).     See  in  §  213,  post. 

1  Brooker  v.  Coffin,  5  Johns.  1S8;  Wilby  v.  Elston,  8  C.  B.  142;  1  Dowl.  &  L.  143  ; 
1  Starkie  on  Slander,  28.     See  ante,  §  144,  subd.  y. 

2  Vin.  Abr.  Act,  for  Words,  D.  a.  19,  23;  Graves  v.  Blanchard,  2  Salk.  696,  in 
note  2,  p.  233,  ante;  and  saying  to  a  married  woman,  "Thou  bold  cullobine,  bastard- 
bearing  whore,  thou  didst  throw  thy  bastard  into  the  dock  at  Whitechapel,"  held  not 
actionable.  (Colabyn  v.  Viner,  Jones,  356.)  So  saying  of  a  woman,  She  had  a 
child,  and  either  she  or  somebody  else  made  away  with  it,  was  held  not  actionable. 
(Falkner  v.  Cooper,  Carth.  55.) 

3  Cavel  v.  Birket,  Sid.  438;  contra,  Hicks  v.  Hollingshead,  Cro.  Car.  261. 

*  Buys  v.  Gillespie,  2  Johns.  115 ;  such  a  charge  is  actionable  in  Kentucky 
(Smalley  v.  Anderson,  2  Monr.  56),  in  Ohio  (Wilson  v.  Robins,  Wright,  40),  in  North 
Carolina  (McBrayer  v.  Hill,  4  Ired.  136),  in  Indiana  (Rickett  v.  Stanley,  6  Blackf. 
169),  and  in  New  Jersey  (Joralemon  v.  Pomeroy,  2  N.  Jersey,  271).  Charging  an  un- 
married woman  with  being  "a  bad  character,"  and  guilty  of  fornication,  held  ac- 
tionable in  Iowa.  (Dailey  v.  Reynolds,  4  Greene,  354.)  And  see  ante,  £  144,  subd. 
I.,  and  post,  note  6,  p.  238. 

6  Woodbury  v.  Thompson,  3  N.  Hamp.  194  ;  Stanfield  v.  Boyer,  6  Har.  &  J.  248; 
contra,  Miller  v.  Parish,  8  Pick.  384 ;  and  see  Walton  v.  Singleton,  7  S.  &  R.  449. 
To  charge  a  woman  with  fornication  or  adultery,  or  incontinence  in  any  form,  is  not 
actionable  at  common  law.  (Heard  on  Libel,  p.  46,  citing  in  addition  to  the  cases 
already  noted,  Ayre  v.  Craven,  2  Adol.  &  El.  2;  4  Nev.  &  M.  220;  Evans  v.  Gwyn. 
5  a  B.  844.) 

6  Lucas  v.  Nichols,  7  Jones'  Law,  No.  Ca.  32. 

'  Brooker  v.  Coffin,  5  Johns.  1S8. 

8  Adecock  v.  Marsh,  8  Ired.  360. 

9  Underhill  v.  Welton,  32  Verm.  40. 

10  Guard  v.  Risk,  11  Ind.  156. 


§  173.]  IS   ACTIONABLE.  235 

married  woman  with  "being  in  the  family- way ; 1  and 
adding,  I  can  prove  it  by  A.  that  she  has  been  taking 
camphor  and  opinm  pills  to  produce  an  abortion  ; 2  or,  she 
had  two  or  three  little  ones  to  A. ; 3  or,  her  child  is  A.'s 
and  A.  was  keeping  her  unmarried  for  his  own  purposes ; 4 
or  charging  sexual  intercourse  with  a  dog ; 5  and  where  the 
defendant  said  of  the  plaintiff  that  B.  told  him  that  on  Sun- 
day, at  the  camp-meeting,  he  scared  the  plaintiff  and  a  man 
up  from  behind  a  log ;  that  they  broke  and  run,  and  that 
he  (B.)  got  her  (plaintiff's)  parasol  and  handkerchief,  held 
that  these  words  were  actionable ; 6  but  saying  of  a 
woman,  she  went  down  the  river  to  the  goose-house,  with- 
out averring  any  special  meaning  to  goose-house,  was  held 
not  actionable.7 

§  173.  The  following  words  and  phrases  published 
orally  of  an  individual  as  such,  have  been  held  actionable 
per  se:   Bogus   peddler,8    dealer   in   counterfeit   money,9 


1  Smith  v.  Minor,  Coxe,  16;  Miles  v.  Van  Horn,  17  Ind.  245  ;  contra,  see  Shep- 
herd v.  Wakeman,  Sid.  79 ;  Lev.  37. 

a  Miles  v.  Van  Horn,  17  Ind.  245.  "It's  my  soul's  opinion  that  nothing  else  kept 
that  girl  in  the  house  last  winter  but  taking  medicine  to  banish  the  young  baker," 
innuendo  that  plaintiff  had  taken  medicine  to  procure  an  abortion,  held  actionable. 
(Miller  v.  Houghton,  10  Up.  Can.  Q.  B.  R.  348.)  And  held  actionable  to  say  of  a 
woman,  "  She  procured  or  took  medicines  to  kill  the  bastard  child  she  was  like  to 
have,  and  she  did  kill  or  poison  the  bastard  child  she  was  like  to  have."  ("Widrig  v. 
Oyer,  13  Johns.  124.) 

3  Symonds  v.  Carter,  32  N.  Hamp.  458,  and  ante,  note  2,  p.  234 ;  Beardsley  v.  Bridg- 
man,  17  Iowa,  290. 

4  Richardson  v.  Roberts,  23  Geo.  215;  Downing  v.  Wilson,  36  Ala.  717.  She 
(plaintiff)  is  not  chaste.  I  have  kept  her,  and  had  criminal  intercourse  with  her; 
or,  "I  have  had  sexual  intercourse  with  her,"  held  not  actionable.  (Berry  v.  Carter, 
4  Stew.  <fe  Port.  387  ;  contra,  Adams  v.  Rankin,  1  Duval  (Ky)  58.)  The  words,  I  have 
lain  with  her  and  pockified  her,  held  actionable.     (Xeal  v.  Mallard,  2  Show.  312.) 

6  Cleveland  v.  Detweiler,  18  Iowa,  299,  and  seeante,  note,  p.  173. 
•  Proctor  v.  Owens,  18  Ind.  21. 

7  Dyer  v.  Morris,  4  Mis.  214. 

8  Pike  v.  Van  Wormer,  6  How.  Pr.  R.  101 ;  5  id.  175. 

9  Pike  v.  Van  "Wormer,  6  How.  Pr.  R.  99. 


236  WHAT    ORAL   LANGUAGE  [Ch.    VIII. 

knave,1  pickpocket,2  sheepstealer,3  traitor,4  common  bar- 
rator or  chainpertor,3  receiver  of  stolen  goods,6  counter- 
feiter.7 I  charge  you  with  felony ; 8  you  are  a  rogue,  and  I 
will  prove  you  a  rogue,  for  you  forged  my  name ; 9  conceal- 
ing stolen  goods,10  purchasing  stolen  goods,  knowing  them 
to  have  been  stolen.11  H02;  thief.12  He  is  a  roome,  and  has 
stolen  my  sheep.13  You  have  altered  the  marks  of  four  of 
my  hogs;14  he  killed  a  horse.15   You  have  removed   my 

1  Knave  imports  dishonesty,  and  is  actionable.  Harding  v.  Brooks,  5  Pick.  244 ; 
contra,  see  Weeks'  case,  1  Sid.  149,  Latch,  159,  and  Monthly  Law  Rep.  Oct  1862, 
p.  .716.  Pillory  knave  held  actionable  (Brown  v.  Dankes,  Cro.  Eliz.  11),  denied 
(Smith's  case,  Cro.  Eliz.  31.)  In  the  time  of  Heury  VI  knave  was  a  good  addition 
to  a  man's  name,  and  the  term  had  not  a  defamatory  meaning.  There  is  said  to  be  an 
edition  of  the  New  Testament,  which  reads:  Paul  a  knave,  of  Je3us  Christ,  instead  of 
Paul,  an  apostle,  &c. 

2  Stebbing  v.  Warner,  11  Mod.  255,  and  see  note  2,  p.  197,-awfe. 

3  Parret  v.  Parret,  3  Bulst.  303 ;  Vin.  Abr.  Act.  for  Words,  I.  a.  5. 

4  Dal.  17.     Bellingham  v.  Minors,  Cro.  Eliz.  133. 

6  Vin.  Abr.  Act.  for  Words,  H.  a.  7 ;  Heake  v.  Moulton,  Yelv.  90 ;  Box  v. 
Barnaby,  Hob.  117,  but  maintainer  of  suits  is  not  actionable.  {Id.)  See  contra, 
Portman  v.  Stowell,  Mo.  43. 

6  Dias  v.  Short,  16  How.  Pr.  R.  322.  To  charge  one  with  having  received  stolen 
goods  is  not  actionable,  unless  the  receiving  was  with  a  guilty  knowledge  (/(/.);  and 
Patterson  v.  Collins,  11  Up.  Can.  Q.  B.  R.  63.  See  Dorsey  v.  Whipps,  8  Gill.  457  ; 
Cox  v.  Humphreys,  Cro.  Eliz.  877 ;  Steventon  v.  Higgins,  2  Keb.  338 ;  Dawes  v. 
Bolton,  Cro.  Eliz.  888,  see  note  2  page  178,  ante. 

7  Howard  v.  Stephenson,  2  Rep.  Conn.  Ct  408;  Thirman  v.  Matthews,  1  Stew. 
384.  The  law  takes  notice  of  the  word  counterfeit,  as  importing  a  felony.  (Stone  v. 
Smalcombe,  Cro.  Jac.  684.) 

8  Vin.  Abr.  Act.  for  Words,  G.  a.  3;  Jones,  32;  Smith  v.  Hodgeskins,  Cro. 
Car.  276;  Poph.  210;  Paine  v.  Prestny,  Sty.  235. 

9  Jones  v.  Hearne,  2  Wils.  87,  and  see  Herst  v.  Borbidge,  57  Penns.  62. 

10  Miller  v.  Miller,  8  Johns.  74;  and  see  Newlyn  v.  Fassett,  Yelv.  154. 

11  Alfred  v.  Farlow,  8  Adol.  &  El.  N.  S.  854;  Mayo  v.  Sample,  18  Iowa,  306; 
Brigg's  Case,  Godb.  157;  and  see  Dorsey  v.  Whipps,  8  Gill,  457. 

12  Cheatwood  v.  Mayo,  5  Munf.  16. 

13  McAlexander  v.  Harris,  6  Munf.  465. 

"Perdue  v.  Burnett,  Minor,  138;  contra,  Williams  v.  Karnes,  4  Humph.  9; 
Johnston  v.  Morrow,  9  Porter,  525. 

13  Gage  v.  Shelton,  3  Ptich.  242.  He  cut  my  horse's  throat  is  actionable.  (Yearly 
v.  Ashley,  4  Har.  &  J.  314.)  He  poisoned  my  cow,  held  actionable.  (Burton  v. 
Burton,  3  Iowa,  316,)  contra  of  He  poisoned  my  horse.  (Chaplin  v.  Cruikshanks,  2 
Har.  &  J.  247.) 


§  173.]  IS    ACTIONABLE.  237 

land-marks ;  cursed  is  lie  that  reinoveth  a  land-mark. 1 
She  put  poison  in  a  barrel  of  drinking-water  to  poison 
me.2  You  are  a  vagrant,3  a  corn-stealer,4  concealer  of 
felony.5  He  is  a  rogue  and  villain ;  he  has  ruined  many 
families,  and  the  curses  of  widows  and  children  are  on 
him ;  he  has  wronged  my  father's  estate,  and  cheated  my 
brother.6  She  produced  a  false  heir,  or  a  bogus  baby ; 7 
she  Inept  a  bawdy-house,8  or  she  keeps  a  whore-house ; 9 
indecent  exposure ; 10  bribery  to  secure  election ; "  break- 
ing ojjen  a  letter  addressed  to  another,  and  taking  out 
money  and  using  the  money  so  taken.12  You  have  com- 
mitted an  act  for  which  I  can  transport  you.18 1  know  enough 
he  has  done  to  send  him  to  the  j^enitentiary.14  I  am  thor. 
oughly   convinced   that   you  are  guilty  (innuendo  of  the 


1  Young  v.  Miller,  3  Hill,  21. 

2  Miles  v.  Wimp,  10  B.  Monr.  417. 

3  Miles  v.  Oldfield,  4  Yeates,  423.     See  note  19,  p.  239. 

4  Vin.  Abr.  Act.  for  Words,  G.  a.  24 ;  Anon.  Cro.  Eliz.  563. 

6  Thou  art  a  concealer  of  felony,  and  it  lieth  in  my  power  to  hang  thee.  Vin. 
Abr.  Act.  for  Words,  G.  a.  21;  Yelv.  154.  M.  hath  stolen  sheep,  and  Nichols  by 
agreement  hast  taken  a  meadow  to  help  him  to  cloak  and  escape  the  felony,  held 
actionable,  although  not  alleged  that  Nichols  knew  of  the  felony  for  taking  the 
meadow  to  cloak  the  felony  implied  he  had  notice  of  it.  (Nichols  v.  Badget,  Mo. 
428.)     And  see  Kich  v.  Holt,  Cro.  Jac.  268. 

6  Marshall  v.  Addison,  4  Har.  &  McHen.  537. 

7  Weed  v.  Bibbins,  32  Barb.  315. 

6  The  offense,  although  past,  is  still  punishable.  (Newton  v.  Masters,  2  Lev.  233 ; 
Martin  v.  Stillwell,  13  Johns.  275;  Vin.  Abr.  Act.  for  Words,  H.  a.  8.)  See  ante,  § 
144,  subd.  d.  A  charge  of  keeping  a  bawdy  house  was  held  not  actionable.  Anon. 
Cro.  Eliz.  643. 

9  Wright  v.  Paige,  36  Barb.  438.  Aff'd  3  Trans.  App.  134.  See  ante,  §  144 
subd.  d. 

10  Torbett  v.  Clare,  8  Ir.  Law  Rep.  86. 

11  Bendish  v.  Lindsay,  11  Mod.  194;  Hoag  v.  Hatch,  23  Conn.  585,  or  to  procure 
an  appointment  under  the  government.  (Purely  v.  Staccy,  5  Burr.  2698.  SeeLindsey 
v.  temith,  7  Johns.  359  ;  Chipman  v.  Cook,  2  Tyler,  456.) 

12  Cheadle  v.  Buel,  6  Ham.  67;  see  McCuen  v.  Ladlam,  2  Harr.  12;  Bell  v. 
Thatcher,  Freeman,  276 ;    Hillhouse  v.  Peck.  2  Stew.  &  Port.  395. 

13  Curtis  v.  Curtis,  4  Mo.  <fc  Sc.  337:    10  Bing.  477. 

14  Johnson  v.  Shields,  1  Butcher,  116. 


238  WHAT    OEAL   LANGUAGE  [Cll.  VIII. 

death  of  D.),  and  rather  than  you  should  go  without  a 
hangman  I  will  hang  you.1  Fraudulently  destroying  a 
vote ; 2  signing  name  to  a  note  without  authority ;  3  he  has 
been  excommunicated,4  whoremonger,5  fornication,  when 
or  where  punishable  by  indictment.6  He  hath  got  M.  N. 
with  child.7  He  should  [would]  have  been  hanged  for  a 
rape,  but  it  cost  him  all  the  money  in  his  purse.8  You 
will  lie  with  a  cow  again  as  you  did.  If  you  had  your 
deserts  you  deserve  to  be  hanged.9  You  (plaintiff)  are  as 
great  a  rogue  as  your  master,  who  is  a  rogue  for  that  he 
stole  rugs.10  Adultery  in  certain  States  in  which  it  is 
punishable  as  a  crime.11     Incontinence.12 

1  Peake  v.  Oldham,  Cowp.  275 ;    2  W.  Black.  960. 

2  Dodds  v.  Henry,  9  Mass.  262. 

8  Creelman  v.  Marks,  7  Blackf.  281. 

4  The  defendant,  a  minister,  pronounced  in  church  that  the  plaintiff  had  been 
excommunicated,  and  refused  to  proceed  with  the  service  until  plaintiff  left  the 
church,  held  actionable.     (Barnabas  v.  Traunter,  Vin.  Abr.  Act.  for  Words,  D.  a.  15.) 

6  Vin.  Abr.  Act.  for  Words,  D.  a.  26 ;  see  note  4,  p.  240,  post. 

6  2  Sid.  21  ;  Joralemon  v.  Pomeroy,  2  N.  Jersey,  271.  In  Kentucky  a  man  may 
maintain  an  action  of  slander  for  words  charging  him  with  having  been  guilty  of 
fornication  (Morris  v.  Barkley,  1  Litt.  64;  see  also,  Phillips  v.  Wiley,  2  lb.  153);  so 
in  Indiana,  under  the  statute  of  that  State  (Rodgers  v.  Lacey,  23  Ind.  507) ;  and  so 
in  Pennsylvania,  though  he  be  a  married  man  (Walton  v.  Singleton,  7  S.  <fc  R.  449), 
but  not  so  in  Ohio.  (Wilson  v.  Robbins,  Wright,  40 ;  and  see  Dukes  v.  Clarke,  2  Blackf. 
20).  And  for  such  a  charge  a  woman  may  maintain  an  action  in  Missouri,  Indiana 
and  New  Hampshire.  (Moberly  v.  Preston,  8  Mis.  462 ;  Abshire  v.  Cline,  3  Ind. 
115  ;    Syinonds  v.  Carter,  32  N.  H.  468  ;)  and  see  note  4,  p.  234,  ante. 

'  Marston  v.  Dennis,  2  Sid.  1657.  Sir  John  Lenthal  lay  with  me,  and  had  the  use 
of  my  body  by  force,  held  actionable ;  the  majority  of  the  court  being  of  opinion 
that  the  words  by  force  imputed  a  rape  (Lenthall's  Case,  Litt.  Rep.  337;  and  see 
Taylor  v.  Tally,  Palmer,  385,  where  a  charge  that  T.  rainslied  H.'s  wife,  was  held 
actionable).  The  words,  He  had  the  use  of  my  wife's  body  by  force,  with  allegation 
of  special  damage  that  in  consequence  of  the  words  plaintiff  was  arrested  on  a 
charge  of  rape,  and  put  to  expense  in  making  his  defense,  held  actionable.  (Harris 
v.  Smith,  Vin.  Abr.  Act.  for  Words,  D.  a.  9.) 

8  Redfern  v.  Todd,  Cro.  Eliz.  589. 

9  Poturite  v.  Barrel,  Sid.  220. 

10  Apton  v.  Penfold,  Comyn's  R.  267. 

11  Steber  v.  Wensel,  19  Mis.  513;  Farnsworth  ».  Storrs,  5  Cush.  412;  Richett  *. 
Stanley,  6  Blackf.  169.     See  ante,  §  144,  subd.  a,  and  post,  note  1,  p.  239. 

H  Watts  v.  Greenlee,  2  Dev.  115.     See  ante,  §  153,  and  post,  g  195. 


§  174.]  IS    ACTIONABLE.  239 

§  174.  The  following  words  and  phrases  published 
orally  of  an  individual  as  such,  have  been  held  not  action- 
able per  se : — Adulterer,1  bawd,2  bankrupt,3  blackleg,4 
cheat,5  common  filcher,6  companion  of  cut-throats,7  deser- 
ter,8 enchanter,9  liar,10  rogue,11  arrant  rogue,12  damned  rogue,13 
you  are  a  rogue  and  cheated  J.  S.  out  of  «£100,14  sacrilege,13 
scoundrel,16  sorcerer,17    swindler,18    vagrant  or  vagabond,19 


1  Vin.  Abr.  Act.  for  Words,  G.  a.  12 ;  D.  a.  27. 

2  Vin.  Abr.  Act.  for  Words,  H.  a.  9. 
8  Vin.  Abr.  Act.  for  Words,  H.  a.  6. 

4  Barnett  v.  Allen,  3  Hurl.  &  Nor.  376. 

6  Chase  v.  Whitlock,  3  Hill,  139;  Stevenson  v.  Hayden,  2  Mass.  406;   Vin.  Abr. 
Act.  for  Words,  G.  a.  See  note  9,  p.  241,  post. 
6  Vin.  Abr.  Act.  for  Words,  G.  a. 
"  Vin.  Abr.  Act.  for  Words,  G.  a. 
8  Hollingsworth  v.  Shaw,  19  Ohio,  430. 
B  Vin.  Abr.  Act.  for  Words,  H.  a. 

10  Smalley  v.  Anderson,  4  Monr.  367;  King's  Case,  4  Inst.  181;  and  see  ante,  § 
144,  subd.  q. 

11  Artieta  v.  Artieta,  15  La.  Ann.  48;  Idol  v.  Jones,  2  Dev.  162;  Quinn  v.  O'Gara, 
2  E.  D.  Smith,  388.  "Your  father  was  a  horse-stealing  rogue,  and  you  (plaintiff) 
are  a  great  rogue,"  not  actionable  (Bellamy  v.  Barker,  1  Strange,  304).  Rogue, 
rascal,  scoundrel,  and  the  like,  are  not  actionable.  (1  Starkie  on  Slander,  24.)  After 
verdict  for  plaintiff  in  an  action  for  calling  him  "a  rogue,"  the  court  refused  to 
arrest  the  judgment.  (Borbidge  v.  Herst,  6  Phil'a.  Rep.  (Legal  Intel.  Cond.)  391; 
8.  c.  Herst  v.  Borbidge,  57  Penns.  62.) 

12  Vin.  Abr.  Act.  for  Words,  G.  a. 

13  Oakley  v.  Farrington,  1  Johns.  Cas.  129  ;  Caldwell  v.  Abby,  Hard.  529.  God 
damned  rogue,  not  actionable.     (Ford  v.  Johnson,  21  Geo.  399.) 

14  Winter  v.  Sumvalt,  3  Har.  &  J.  38.  Saying  one  was  a  rogue  of  record,  was 
helda  ctionable.     (Sty  220.) 

16  Gawdy  v.  Smith,  Sid.  376. 

16  Quinn  v.  O'Gara,  2  E.  D.  Smith,  388. 

17  Vin.  Abr.  Act.  for  Words,  H.  a. 

"  Chase  v.  Whitlock,  3  Hill,  139;  Saville  v.  Jardine,  2  H.  Black.  531;  Odiorne 
v.Bacon,  6  Cush.  185;  Stevenson  v.  Hayden,  2  Mass.  406.  To  say  of  a  bank 
director  he  is  a  swindler  held  actionable.  (Forrest  v.  Hanson,  1  Cr.  C.  C.  63.)  To 
write  of  one  he  is  a  swindler  is  actionable  (I'Anson  v.  Stuart,  1  T.  R.  748).  See  notes 
3,  4,  p.  247,  post. 

19  Corcoran  v.  Corcoran,  7  Ir.  L.  R.  N.  S.  272;  Campbell  v.  White,  5  Id.  312,  but 
see  Miles  v.  Oldfield,  4  Yeates,  423. 


240  WHAT    ORAL   LANGUAGE  [Cll.  \  111. 

varlet,1  villain,2  witch,3  whoreinaster,4  bastard.5  He  is 
father  of  a  bastard.6  He  cozened  J.  S.  of  one  hundred 
marks.7  He  cozened  the  Earl  of  H.  of  as  much  as  he 
(plaintiff)  is  worth.8  You  cozened  me  of  £1,200  at  one 
time.9  Your  master  (plaintiff)  is  a  cozening,  cheating 
knave,  and  a  rogue  to  boot,  and  cozened  and  cheated  all 
the  parish  and  all  persons  he  deals  with.10  Those  two 
rascals  (plaintiff  and  his  brother)  killed  my  hogs  and 
converted  them  to  their  own  use.11  The  library  has  been 
plundered  by  C.  (the  plaintiff).12  He  killed  and  salted  one 
of  my  hogs.13  He  defrauded  a  meal  man  of  a  horse.14  He 
robbed  the  treasury  and  bought  a  farm  with  it.15  He 
embezzled  goods.16  He  attempted  to  commit  a  robbery.17 
He  passed  counterfeit  money.18    He  cut  off  the  tail  of  my 


1  Vin.  Abr.  Act.  for  Words,  G.  a. 

9  Vin.  Abr.  Act.  for  Words,  G.  a. 

3  Vin.  Abr.  Act.  for  Words,  H.  a.  Witch  and  sorcerer  were  actionable,  whilst  the 
statutes  against  witchcraft  remained  in  force.  (Rogers  v.  Gravat,  Cro.  Eliz.  571.) 
"Heretic"   or   "Papist,"  not  actionable.     (Vin.  Abr.  Act.  for  Words,  D.  a.) 

*  Witcher's  Case,  Keb.  119;  Vin.  Abr.  Act.  for  Words,  D.  a.  But  actionable 
with  special  damage.     (Crass  v.  Mathew,  Cro.  Jac.  323  ;  2  Bulst.  86.) 

6  Not  actionable  unless  special  damage.  Vin.  Abr.  Act.  for  Words,  D.  a.  16,  17, 
18,  21,  22,  31 ;  Nelson  v.  Staff,  Cro.  Jac.  432.     Humphreys  v.  Stanfield,  Cro.  Car.  469. 

6  Unless  the  bastard  is  chargeable  to  the  parish.  (Salter  v.  Brown,  Cro.  Car.  436 ; 
Randle  v.  Beal,  Cro.  Jac.  473.) 

7  Somerstaile's  Case,  Goldsb.  125. 

8  Tut  v.  Kerton,  1  Bulst.  172. 

9  Townsend  v.  Barker,  Sty.  388.  Thou  hast  no  more  than  thou  has  got  by 
cozening,  not  actionable.     (Broomfield  v.  Snoke,  12  Mod.  307.) 

10  Tamlin  v.  Hamlin,  Show.  181.  "  Thou  are  a  cozening  knave,  and  hast  cozened 
thy  master  of  a  bushel  of  barley,"  spoken  of  a  servant  in  husbandry  held  action- 
able.    (Seaman  v.  Bigg,  Cro.  Car.  480.) 

11  Sturgenegger  v.  Taylor,  2  Brevard,  480. 

,a  Carter  v.  Andrews,  16  Pick.  1 ;   and  see  Mackay  v.  Ford,  5  H.  &  N.  792. 
19  Clay  v.  Barkley,  Ky.  Dec.  79. 
14  Richardson  v.  Allen,  2  Chit.  654. 
JS  Allen  v.  Hillman,  12   Pick.  101. 

16  Caldwell  v.  Abbey,  Hard.  529 ;  and  see  Williams  v.  Stott,  1  Cr.  &  M.  675 ;  3 
Tyrw.  688. 

17  Russell  v.  "Wilson,  7  B.  Monr.  261. 

18  Church  v.  Bridgman,  6  Miss.  190. 


§  174.]  IS   ACTIONABLE.  241 

horse.1  He  harbored  my  negroes.2  He  whipped  his  wife, 3 
or  his  mother.4  He  is  a  mulatto  and  akin  to  negroes. 5 
He  gave  a  free  pass  to  a  negro.6  He  (plaintiff)  is  a 
brabbler  and  a  quarreller,  for  he  gave  his  champion 
counsel  to  make  a  deed  of  gift  of  his  goods,  to  kill  me 
and  then  to  fly  out  of  the  country,  but  God  preserved  me.  T 
His  (plaintiff's)  boys  did  frequently  come  to  our  house 
and  hire  our  negroes  and  take  the  dogs,  and  go  down  into 
the  river  bottom  and  killed  cattle  no  more  theirs  than 
mine.8  You  cheated  the  lawyer  of  his  linen  and  stood 
bawd  to  your  daughter  to  make  it  up  with  him ; 
you  cheat  everybody,  you  cheated  me  of  a  sheet,  you 
cheated  T.  S.,  and  I  will  let  him  know  it. 9  She  secreted 
one  shilling  under  the  till ;  stating  these  are  not  times  to 
be  robbed.10  She  is  an  hermaphrodite.11  He  is  a  blood- 
sucker, and  not  worthy  to  live  in  a  commonwealth,  and 
his  child,  unborn,  is  bound  to  curse  him.12  Thy  credit 
hath  been  called  in  question  and  a  jury  being  to  pass  upon 
it,  thou  foistedst  on  a  jury  early  in  the  morning,  and  the 
lands  thou  hast  are  gotten  by  lewd  practices.18  Thou  wast 
the  cause  that  J.  S.  did  hang  himself,  and  that  K.  1ST.  did 


I  Gage  v.  Shelton,  3  Rich.  242. 

*  Croskeys  v.  O'Driscoll,  1  Bay,  481 ;   Skinner  v.  White,  1  Dev.  &  Bat.  471. 

3  Birch  v.  Benton,  26  Miss.  153;  Dudley  v.  Horn,  21  Ala.  379. 

4  Speaker  v.  McKenzie,  26  Miss.  255. 

5  Barrett  v.  Jarvis,  1  Ham.  83  note.  But  such  a  charge  was  held  actionable. 
(Eden  v.  Legare,  1  Bay,  171 ;  Atkinson  v.  Hartley,  1  McCord,  203;  King  v.  "Wood, 
1  N.  &  M.  184.) 

8  McManus  v.  Jackson,  28  Miss.  56. 

7  Eaton  v.  Allen,  4  Co.  16. 

8  Porter  v.  Hughey,  2  Bibb,  232. 

8  Davis  v.  Miller,  2  Strange,  1169;    and  see  note  5,  p.  239,  ante. 
10  Kelly  v.  Partington,  2  Nev.  <fe  M.  460. 

II  The  words  were  spoken  of  one  who  taught  dancing,  and  held  not  actionable, 
because  men  as  well  as  women  taught  dancing  (Weatherhead  v.  Armitage,  2  Levinz, 
233).  But  in  Ohio  it  has  been  held  actionable  to  call  a  woman  an  hermaphrodite. 
(Malone  v.  Stewart,  15  Ohio,  319.) 

n  Thimmelthorp's  Case,  Noy,  61. 
3  Nichols  v.  Badger,  Cro.  Eliz.  348;  see  ante,  §  144,  subd.  j. 


242  WHAT   ORAL   LANGUAGE  [Ch.  Viil. 

cut  his  own  throat,  and  thou  beginnest  with  no  man  hut 
thou  undoest  him ; x  drunkenness ; 2  he  got  drunk  on 
Christmas  day.3 

§  175.  With  respect  to  a  charge  of  having  a  disease,  it 
is  actionable  to  charge  one  with  having  the  venereal 
disease,4  or  gonorrhoea,5  or  leprosy,6  or  semble,  falling  sick- 
ness,7 but  not  the  itch  or  small-pox,8  or  with  being  in- 
sane,9 unless  it  affects  him  in  his  business.10  To  call  one 
leprous  knave  was  held  actionable.11  But  it  has  been 
held  not  actionable  to  charge  one  with  having  had  any  of 
the  diseases  above  indicated ; 12  thus  it  was  held  not  action- 
able to  say  of  one,  Thou  art  a  base  fellow  and  liadst  [or, 
hast  had]  the  French  pox,13  or  to  say  of  a  woman,  "  I  have 
kept  her  common  these  seven  years,  she  hath  given  me 


1  Anon.  Dal.  89. 

3  Buck  v.  Hersey,  31  Maine,  558;  O'Hanlon  v.  Myers,  10  Rich.  Law  (So.  Car.) 
128.  But  held  actionable  -when  charged  against  a  preacher  or  settled  minister 
(McMillen  v.  Birch,  1  Binn.  178;  Chaddock  v.  Briggs,  13  Mass.  248),  or  a  female, 
(Brown  v.  Nickerson,  5  Gray,  1),  or  a  master  mariner  in  command  of  a  vessel. 
(Irwin  v.  Brandwood,  2  Hurl.  &  C.  960.)  There  is  a  statute  by  which  conviction  of 
drunkenness  deprives  a  master  mariner  of  his  certificate. 

3  Warren  v.  Norman,  Walker,  387. 

4  Bloodworth  v.  Gray,  7  M.  &  G.  334 ;  8  Sc.  N.  S.  9 ;  Goldman  v.  Stearns,  7  Gray, 
181;  Williams  v.  Holdridge,  22  Barb.  398;  Hewit  v.  Mason,  24  How.  Pr.  R.  366; 
Vin.  Abr.  Act.  for  Words,  D.  a.  56 ;  H.  a.  3,  4,  5,  9 ;  U.  a.  15 ;  Nichols  v.  Guy,  2  Car- 
ter, 82. 

6  Watson  v.  McCarthy,  2  Kelly,  57 ;  Williams  v.  Holdridge,  22  Barb.  398. 

6  Id. 

7  Spoken  of  a  lawyer.     (Tajdor  v.  Perkins,  Noy,  117.) 

8  See  Villers  v.  Monsley,  2  Wils.  403,  and  notes  2,  p.  170  ante,  and  3,  p.  248,  post. 
8  Joannes  v.  Burt,  6  Allen  (Mass.),  236. 

10  Morgan  v.  Lingen,  8  Law  Times,  N.  S.  800. 
23  Taylor  v.  Perkins,  Cro.  Jac.  144. 

11  Carslake  v.  Mapeldora,  2  T.  R.  474 ;  Bloodworth  v.  Gray,  7  M.  &  G.  334 ;  8  Sc. 
N.  S.  9;  Pike  v.  Van  Wormer,  5  How.  Prac.  R.  171. 

25  Smith's  Case,  Noy,  157;  Dutton  v.  Eaton,  All.  31.  But  in  Miller's  Case,  Cro. 
Jac.  430,  the  words  Mrs.  Miller  is  a  whore,  and  hath  had  the  pox,  were  held  action- 
able. So  were  the  words  "  She  went  to  the  spa  to  be  cured  of  the  French  pox."  The 
words  imply  she  had  that  disease.     (Hobsou  v.  Hudson,  Sty.  199.) 


§175.]  IS    ACTIONABLE.  243 

the  bad  disorder,  and  three  or  four  other  gentlemen."1 
The  reason  assigned  for  these  decisions  is,  that  to  charge 
the  having  such  a  disease  is  actionable  because  the  disease, 
being  contagious,  the  having  it  renders  the  person  an  im- 
proper member  of  society,  but  there  is  no  reason  why  the 
company  of  a  person  who  has  had  a  contagious  disease 
should  be  avoided ;  and  therefore,  to  say  one  has  had  such 
a  disease  is  not  actionable.  A  distinction  is  taken  be- 
tween having  had  a  disease  and  having  been  guilty  of  a 
crime,  the  stain  of  which  remains.2  These  decisions  as- 
sume that  it  is  the  fact  of  the  disease  being  contagious 
which  renders  the  charge  of  having  it,  actionable.  We 
are  not  satisfied  that  this  assumption  is  warranted.  The 
charge  of  leprosy  certainly  involved  more  than  a  mere 
charge  of  having  a  contagious  disease.  The  leper  lost  his 
civil  rights  and  all  ecclesiastical  privileges,  he  was  at  once 
cast  off  by  society  and  excommunicated  by  the  church. 
The  physician  held  out  to  him  no  hope  of  being  cured, 
and  the  priest  no  hope  of  being  saved;  and,  besides, 
leprosy  impeded  the  descent.8  And  there  was  a  writ  de 
faproso  amovendo  commanding  the  sheriff  to  remove  him 
to  a  solitary  place.  Even  at  this  day,  in  those  countries 
in  which  leprosy  prevails,  the  slightest  ascertained  taint 
of  the  disease  entails  upon  the  sufferer  a  compulsory  ex- 
clusion tantamount  to  banishment  from  the  rest  of  the 
community,  or  even  to  perpetual  detention  in  a  lazaret ; 
yet,  strange  to  say,  it  seems,  that  leprosy  is  not  a  conta- 
gious disease,4  although  beyond  doubt  it  was  so  esteemed  at 


1  Carslake  v.  Mapeldora,  2  T.  R.  4*73. 

8  There  is  this  difference  of  scandal  in  the  past  tense,  when  it  touches  the  mind 
and  when  it  touches  the  body.  If  it  be  a  scandal  to  the  mind,  and  the  affections  as 
perjury,  felony,  <fec,  then  the  mind  that  remains  is  slandered;  but  if  it  be  of  an  acci- 
d<  nlal  infirmity  or  disease  of  the  body,  it  is  otherwise,  for  none  now  will  forbear  his 
company,  though  he  had  the  plague  in  times  past.  (Coke,  Ch.  J. ;  see  Smith's  Case, 
Noy,  157  ;  Dutton  v.  Eaton,  All.  31.)     As  to  charges  in  the  past  tense,  see  §  158,  ante. 

3  Half's  Hist.  Com.  Law,  ch.  vi. 

4  Report  on  Leprosy  by  the  Royal  College  of  Physicians,  prepared  for  Her 
Majesty's  Secretary  of  State  to  the  Colonies.     (London,  1867.) 


24-1  WHAT   OEAL   LANGUAGE  [Ch.  VIII. 

the  period  when  the  dicta  we  have  above  referred  to  were 
pronounced.  The  charge,  too,  of  having  the  lues  venerea, 
was  something  more  than  a  charge  of  having  a  contagious 
disease,  at  least  it  involved  a  charge  of  lewdness.  That 
the  bare  fact  of  the  disease  beino;  contagious  was  not  the 
ground  for  making  the  charge  actionable,  seems  to  be  ap- 
parent from  this :  Lues  venerea,  vulgarly  called  pox,  was 
formerly  called  the  French  pox,  or  the  great  pox,  to  dis- 
tinguish it  from  variola  or  small-pox.  Now  the  small-pox 
is  a  contagious  disease,  but  it  has  never  been  held  action- 
able to  charge  one  with  having  the  "  small-pox,"  and  we 
find  in  the  reports  that  when  the  charge  was  simply  of 
having  the  pox — without  any  other  words  or  facts — to  in- 
dicate that  the  French  pox  was  intended,  the  charge  was 
held  not  actionable.1  To  such  an  extent  was  the  distinc- 
tion carried  that  where  the  charge  was  simply  of  having 
the  pox,  it  was  held  the  meaning  of  French  pox  could  not 
be  given  to  the  word  by  an  innuendo,  without  an  aver- 
ment which  warranted  it.2  Notwithstanding  the  dicta 
above  referred  to,  probably  a  better  reason  for  holding 
actionable  a  charge  of  having  the  leprosy  or  hies  venerea 
is  that  those  diseases  are  supposed  to  be  ineradicable  from 
the    system,   and   their   taint   hereditary.8      But   if  this 

1  It  was  held  not  actionable  to  say  of  a  man,  Hang  him,  he  is  full  of  the  pox 
(Bonner's  Case,  4  Coke,  17),  or  of  a  woman,  You  are  a  pocky  whore,  go  to  the  leech 

[doctor]  for  the  pox  ( o.  Farm,  Vin.  Abr.  Act.  for  Words,  Y.  a.  23),  or,  Thou 

art  a  scurvy  pocky  whore  (Hunt  v.  Jones,  Cro.  Jac.  499),  because  it  was  not  apparent 
that  French  pox  was  intended,  but  it  was  said  in  another  case  that  when  the  word 
pox  was  coupled  with  the  word  whore,  the  French  pox  would  be  intended  (Sid.  50; 
Clifton  v.  Wells,  12  Mod.  633 ;  Garford  v.  Clark,  Cro.  Eliz.  857  ;  and  see  note  2,  p.  233, 
ante).  So  saying  of  one,  He  caught  the  pox,  was  held  not  actionable,  as  not  implying 
the  French  pox,  but  saying  he  got  the  pox  by  a  yellow-haired  wench  (Sym  v.  Hock- 
ley, Sid.  324),  or,  He  is  rotten  with  the  pox  (Davies  v.  Taylor,  Cro.  Eliz.  648),  or, 
Thy  pocky  wife,  her  nose  is  eaten  with  the  pox  (Brooke  v.  Wise,  Cro.  Eliz.  878),  or, 
The  pox  haunts  you  twice  a  year  (Preckington's  Case,  Vin.  Abr.  Act.  for  Words,  Y. 
a.  17),  or,  You  were  laid  for  the  pox  (Austin  v.  White,  Cro.  Eliz.  214),  or,  Thou  art 
burnt  and  has  the  pox  (Box's  Case,  Cro.  Eliz.  2),  was  held  actionable  because  French 
pox  is  implied.  Webster,  in  his  Dictionary,  says  that  the  word  pox,  without  an 
epithet,  imports  hies  venerea. 

2  Bonner's  Case,  Mo.  573  ;  4  Coke,  17. 

8  See  Report  from  Select  Committee  of  House  of  Lords  on  the  Contagious  Diseases 


§  17G.]  IS    ACTIONABLE.  2  45 

reason  were  the  true  one,  then  the  charge  of  having  had 
should  be  actionable  equally  with  a  charge  of  having  such 
a  disease.  If,  indeed,  the  disease  be  ineradicable,  then  to 
have  had  it,  is  always  to  have  it,  and  language  charging 
the  having  had  such  a  disease  should  be  actionable. 

§  176.  What  language  published  in  writing  concern- 
ing an  individual  as  such,  is  actionable  per  se?  That 
language  in  writing  is  actionable  per  se  which  denies  "  to 
a  man  the  possession  of  some  such  worthy  quality  as 
every  man  is  a  priori  to  be  taken  to  possess,"1  or,  which 
"  tends  to  bring  a  party  into  public  hatred  or  disgrace,"  2 
or  "to  degrade  him"3  "in  society,"4  or,  expose  him  to 
"  hatred,  contempt  or  ridicule," 5  or  "  which  reflects  upon 
his  character," 6  or  "  imports  something  disgraceful  to 
him,"  T  or  "  throws  contumely "  on  him,8  or  "  contumely 
and  odium,9  or  "  tends  to  vilify  him," 10  or  "  injure  his 
character  or  diminish  his  reputation,"  n  or  which  is  "  in- 


Act  of  1866.      "West.  Rev.  July,   1869;  Prostitution  in   relation  to  the  National 
Health,  West.  Rev.  Oct.,  1869. 

1  George  on  Libel,  17.     See  §  21,  ante. 

2  Tenterden,  Ch.  J.,  Woodard  v.  Dowsing,  2  Man.  &  Ry.  74. 

3  Holroyd,  J.,  Id. 

4  Bayley,  B.,  Forbes  v.  King,  1  Dowl.  627. 

6  Parmiter  v.  Coupland,  6  M.  &  W.  105;  Gathercole  v.  Mial,  15  M.  &  W.  319; 
Miller  v.  Butler,  6  Cush.  71 ;  Shattuck  v.  Allen,  4  Gray,  540;  Com'wealth  v.  Wright, 
1  Cush.  46;  Hillhouse  v.  Dunning,  6  Conn.  391;  McGregor  v.  Thwaites,  3  B.  &  C. 
24;  Clement  v.  Chivis,  9  B.  &  C.  172;  4  Man.  &  R.  127;  Clark  v.  Binney,  2  Pick. 
113;  Cooper  v.  Stone,  24  Wend.  434;  Colby  v.  Reynolds,  6  Verm.  489;  Johnson  v. 
Stebbins,  5  Ind.  364 ;  Lansing  v.  Carpenter,  9  Wis.  540. 

6  O'Brien  v.  Clement,  15  M.  &  W.  435 ;  Johnson  v.  Stebbins,  5  Ind.  364;  Adams  v. 
Lawson,  17  Gratt.  250. 

7  Digby  v.  Thompson,  4  B.  &  Adol.  821 ;  1  Nov.  &  M.  485. 

6  Bell  v.  Stone,  1  Bos.  &  P.  331 ;  Obaugh  v.  Finn,  4  Pike,  110. 

9  Riggs  v.  Denniston,  3  Johns.  Cas.  198. 

10  Shipley  v.  Todhunter,  7  C.  &  P.  680. 

11  2  Leighs  N.  P.  1360;  Dunn  v.  Withers,  3  Humph.  512;  Melton  v.  The  State,  3 
Id.  380. 


240  WHAT   WRITTEN   LANGUAGE  [Cll.  VIII. 

jurious  to  his  character," 1  or  to  his  "  social  character," 2 
or  shows  him  to  be  " immoralor  ridiculous,"  3  or  "  induces 
an  ill  opinion  of  him," 4  or  "  detracts  from  his  character  as 
a  man  of  good  morals," 5  or  alters  his  "  situation  in  society 
for  the  worse," 6  or  "  imputes  to  him  a  "bad  reputation  " 7 
or  "  degradation  of  character," 8  or  ingratitude,9  and  all  de- 
famatory words  injurious  in  their  nature." 10  But  to  sus- 
tain an  action  for  libel  the  plaintiff  must  either  show 
special  damage  or  "  the  nature  of  the  charge  must  be  such 
that  the  court  can  legally  presume  he  has  been  degraded 
in  the  estimation  of  his  acquaintances,  or  of  the  public,  or 
has  suffered  some  other  loss  either  in  his  property,  charac- 
ter or  business,  or  in  his  domestic  or  social  relations,  in 
consequence  of  the  publication.11 

§177.  It  is  actionable  to  charge  one  in  writing  with 


1  Cockayne  v.  Hodgkisson,  5  C.  &  P.  543. 

2  1  Am.  Lead.  Cas.  138;  3d  Ed. 

3  The  State  v.  Farley,  4  M'Cord,  317. 

4  Hillhouse  v.  Dunning,  6  Conn.  391. 

6  Young  v.  Miller,  3  Hill,  21 ;  Quinn  v.  O'Gara,  2  E.  D.  Smith,  383. 

6  1  Starkie  on  Slander,  169;  and  see  Turner  v.  Merryweather,  7  C.  B.  251; 
Wakley  v.  Healey,  Id.  594;  Gregory  v.  Reg.,  15  Q.  B.  957;  Capel  v.  Jones,  4  C.  B. 
259 ;  Prior  v.  Wilson,  1  C.  B.  N.  S.  95. 

7  Cooper  v.  Greely,  1  Denio,  347. 

8  McCorkle  v.  Binns,  5  Binney,  340. 

9  Cox  v.  Lee,  Law  Rep.  IV.  Ex.  284. 

10  Chaddock  v.  Briggs,  13  Mass.  248.  For  some  definitions  of  libel  see  ante,  note  to 
§  21 ;  The  State  v.  Avery,  7  Conn.  267 ;  Williams  v.  Karnes,  4  Humph.  9;  Clark  v. 
Binney,  2  Pick.  113;  Baron  v.  Beach,  5  N.  Y.  Legal  Observer,  448. 

11  Cooper  v.  Stone,  2  Denio,  299 ;  repeated  Bennett  v.  "Williamson,  4  Sand.  65. 
"  There  must  be  some  certain  or  probable  temporal  loss  or  damage  to  make  words 
actionable  ;  but  to  impute  to  a  man  the  mere  defect  or  want  of  moral  virtue,  moral 
duties  or  obligations,  which  renders  a  man  obnoxious  to  mankind,  is  not  actionable. 
(De  Grey,  Ch.  J.,  Onslow  v.  Home,  3  Wils.  177,  approved  by  Lawrence,  J.,  Holt  v. 
Scholefield,  6  T.  R.  691.)  But  it  is  said  (1  Starkie  on  Slander,  2),  "  an  action  lies  in 
respect  of  any  willful  communication,  oral  or  written,  to  the  damage  of  another  in 
law  or  in  fact,  made  without  lawful  justification  or  excuse."  "  A  person  cannot  say 
anything  disparaging  of  another  that  has  not  a  tendencj-  to  injure  him  morally  or 
professionally."     (Tindal,  Ch.  J.,  Doyley  v.  Roberts,  3  Bing.  N.  C.  835 ;  5  Scott,  40.) 


§177.]  IS    ACTIONABLE.  247 

being  a  villain,1  liar,2  rogue,  rascal,3  swindler,4  drunkard, 
cuckold  and  tory,5  informer,6  the  author  or  publisher  of  a 
libel  or  slander,7  libellous  journalist,8  a  hypocrite,  and  using 
the  cloak  of  religion  for  unworthy  purposes ; 9  a  miserable 
fellow,  it  is  impossible  for  a  newspaper  article  to  injure 
to  the  extent  of  six  cents,  and  that  the  community  can 
hardly  despise  him  worse  than  they  now  do ; 10  or  with 
having  kidnapped  a  free  colored  man  and  hurried  him 
into  slavery ; n  or,  paid  money  to  procure  an  appointment 
to  an  office,  or  received  money  for  offices ; 12  or,  of  having 

1  Bell  v.  Stone,  1  Bos.  &  P.  331. 

2  Brooks  v.  Bemis,  8  Johns.  455,  approved  Moore  v.  Bennett,  33  How.  Pra.  R.  180 ; 
and  see  ante,  §  144,  subd.  q.  Liar  and  knave,  see  King's  Case,  4  Inst.  181.  A  charging 
that  one  shot  out  of  a  leather  gun,  meaning  that  he  was  guilty  of  falsehood,  held 
actionable.     (Hirmon  v.  Delaney,  2  Str.  89,  and  post,  note  6,  p.  248.) 

3  Rogue,  rascal,  swindler,  villain,  are  libellous.  (Cooke  on  Defam.  2.)  "I  look 
upon  him  as  a  rascal,"  actionable.  (Williams  v.  Karnes,  4  Humph.  9.)  Felon,  de- 
bauchee, and  seducer,  are  actionable.     (Millett  v.  Hulton,  4  Esp.  Cas.  248.) 

4  I'Anson  v.  Stuart,  1  T.  R.  748 ;  see  note  18,  p.  239,  ante,  and  note  6,  p.  276,  post. 
6  Giles  v.  The  State,  6  Geo.  276.     In  Smith  v.  Wood,  2  Salk.  692,  it  is  said  to  call 

a  man  cuckold  is  not  an  ecclesiastical  slander,  but  to  call  him  wittol  is,  for  wittol 
imports  his  knowledge  and  consent.  Shakespeare  says:  Wittol-cuckold,  the  devil 
himself  hath  not  such  a  name.     (Merry  Wives  of  Windsor,  act  II,  scene  2.) 

6  2  Law  Reporter,  126  (London,  1821 ;  but  see  Informer,  not  actionable;  Mawe  v. 
Pigott,  4  Ir.  C.  L.  N.  S.  54). 

7  Andreas  v.  Koppenheafer,  3  Ser.  &  R.  255 ;  Colby  v.  Reynolds,  6  Verm.  489 ; 
Viele  v.  Gray,  10  Abb.  Prac.  Rep.  1;  Kerr  v.  Force,  3  Cr.  C.  C.  8;  Russell  v.  Ligon, 
Vin.  Abr.  Act.  for  words,  II.  a.  27;  Clark  v.  Binney,  2  Pick.  113.  Held  actionable 
to  publish  "  a  report  circulated  by  B.  (the  plaintiff)  against  C,  stating  he,  C,  made 
him,  B.,  pay  a  note  twice,  and  proved  by  B.  to  be  false.  (Shelton  v.  Nance,  7  B.  Monr. 
128.)  "'  A  report  has  gone  abroad  through  the  instrumentality  of  S.  W.  (the  plaintiff), 
stating  that  R.  W.  had  a  load  of  falsely-packed  cotton  bales,  which  report  is  a  direct 
falsehood,"  was  held  actionable.  (Woodburn  v.  Miller,  Cheves,  194.)  "  His  slander- 
ous reports  nearly  ruined  some  of  our  best  merchants,"  held  actionable.  (Cramer  v. 
Noonan,  4  Wis.  231.)  "He  is  a  lying  and  slanderous  rascal."  (Snowdon  v.  Linds,  1 
Cr.  C.  C.  569.)  Formerly  a  libeler  was  disqualified  from  making  a  will.  Sec  Swin- 
burne on  Wills,  P't  1,  §  8,  et  seq. ;  Redfield  on  Wills,  ch.  Ill,  §  14  a.,  p.  118,  and  the 
author  or  publisher  of  a  libel  could  receive  no  benefit  under  the  will  of  the  person 
libelled.  See  Domat's  Civil  Law,  B'k  I,  p't  II,  title  1,  §  111,  subd.  vii.  Gardiner  v, 
Helvis,  3  Lev.  248. 

6  Wakley  v.  Cooke,  4  Ex.  511. 
•  Thorley  v.  Kerry,  4  Taunt.  355. 

10  Brown  v.  Remington,  7  Wis.  462. 

11  Nash  v.  Benedict,  25  Wend.  645. 

11  Weed  v.  Foster,  11  Barb.  203;  and  see  Purdy  v.  Stacey,  5  Burr.  2698. 


2  48  WHAT   WRITTEN   LANGUAGE  [Cll.  VIII. 

been  deprived  of  the  ordinances  of  the  church ; 1  or  with 
being  thought  no  more  of  than  a  horse-thief  and  a  coun- 
terfeiter ; 2  or,  with  stinking  of  brimstone  and  having  the 
itch ; 3  or,  with  voting  twice  on  the  same  ballot  for  the 
election  of  State  officers ; 4  with  infracting  a  patent,5  with 
falsehood,6  dishonesty,7  moral  obliquity,8  smuggling,9  blas- 
phemy,10 false  swearing,11  insanity,12  or  being  fit  for  a  lunatic 


1  McCorkle  v.  Binns,  5  Binn.  340. 

2  Nelson  v.  Musgrave,  10  Mis.  648. 

3Villers  v.  Monsley,  2  Wils.  403.     In  this  case  the  words  complained  of  were: 

Old  Villars,  so  strong  of  brimstone  you  smell, 
As  if  not  long  since  you  had  got  out  of  hell. 
But  this  damnable  smell  I  no  longer  can  bear, 
Therefore  I  desire  you  would  come  no  more  here. 
You  old  stinking,  old  nasty,  old  itchy,  old  toad, 
If  you  come  any  more  you  shall  pay  for  your  board. 
You'll  therefore  take  this  as  a  warning  from  me, 
And  never  enter  the  doors  while  they  belong  to  I.  P. 

4  Walker  v.  Winn,  8  Mass.  248. 
6  Watson  v.  Trask,  6  Ham.  531. 

6  Cooper  v.  Stone,  24  Wend.  434;  Lindley  v.  Horton,  27  Conn.  58;  Woodburn  v. 
Miller,  Cheeves,  194;  Shelton  v.  Nance,  7  B.  Monr.  128,  and  ante,  note  2,  p.  247. 

7  Hart  v.  Reed,  1  B.  Monr.  166;  Taylor  v.  Church,  1  E.  D.  Smith,  279;  s.  c.  on 
appeal,  8  N.  Y.  452  ;  Fowles  v.  Bowen,  30  X.  Y.  20;  and  see  Henderson  v.  Hale,  19 
Ala.  154.  Actionable  to  publish  of  one  that  he  had  been  detected  in  cheating  at 
cards.  (Livingston  v.  Cheatham,  Pamphlet  Report;  Holt  on  Libel,  239,  note.)  De- 
tected implies  guilt,  ante  §  144,  subd.  u.  Where  the  defendant  wrote  concerning  the 
plaintiff,  his  late  servant,  "  He  has  now  become  so  inflated  with  self-importance  by 
the  few  hundreds  made  in  my  service,  God  only  knows  whether  honestly  or  otherwise." 
There  was  an  innuendo  that  defendant  meant  that  plaintiff  was  dishonest  in  the 
service  of  defendant.  The  jury  having  found  a  verdict  for  the  plaintiff,  the  court 
refused  to  disturb  the  verdict.     (Clegg  v.  Loffer,  3  Mo.  k  Sc.  727.) 

8  Kerr  v.  Force,  3  Cr.  C.  C.  8. 

9  Stilwell  v.  Barter,  19  Wend.  487. 

10  Stow  v.  Converse,  3  Conn.  325,  note  8,  p.  272,  post. 

11  Steele  v.  Southwick,  9  Johns.  214.  The  words  were:  "  Our  army  swore  terribly 
in  Flanders,  said  Uncle  Toby;  and  if  Toby  were  here  now,  he  might  say  the  same  of 
some  modern  swearers;  the  man  (meaning  A.  the  plaintiff)  is  no  slouch  at  swearing 
to  an  old  storj';  "  held,  that  these  words,  if  they  do  not  import  a  charge  of  perjury, 
were  libellous,  as  they  held  up  the  plaintiff  to  contempt  and  ridicule,  as  being  so 
thoughtless  or  so  criminal  as  to  be  regardless  of  the  obligation  of  an  oath.  "  I  hope 
you  will  stop  swearing  lies  about  the  trees.  *  *  I  advise  you  either  to  quit  lying 
or  preaching — one,"  actionable.     (Adams  v.  Lawson,  17  Gratt.  250.) 

12  Southwick  v.  Stevens,  10  Johns.  443;  Morgan  v.  Lingen,  8  Law  Times  Rep.  N. 
S.  800  ;  Rex  v.  Harvey,  2  B.  &  C.  258  ;  Rex  v.  Creevey,  1  M.  &  S.  273  ;  see,  however, 
Mayrant  v.  Richardson,  1  Kott  &  McCord,  348. 


§   177  «.]  IS    ACTIONABLE.  249 

asylum,  and  unsafe  to  go  at  large ;  *  being  guilty  of  gross 
misconduct  in  insulting  females,  &c. ;  '2  with  want  of  chast- 
ity ; 3  as  engaged  in  serving  writs  on  the  anti-renters  and 
catching  Indians ; 4  or  for  charging  that  the  plaintiff,  a 
married  man,  went  through  the  ceremony  of  marriage  with 
an  actress ; 5  and  to  publish  an  obituary  notice  of  a  living- 
person,  was  held  actionable.6 

§  177  a.  Plaintiff  having  defendant's  bond,  the  validity 
of  which  had  been  long  litigated,  advertised  it  for  sale ;  a 
statement  of  the  circumstances  under  which  it  was  given, 
concluding  with,  "  His  object  is  either  to  abstract  money 
from  the  pocket  of  an  unwary  purchaser,  or  what  is  more 
likely,  by  this  threat  of  publication  to  extort  money  from 
me;"  held  to  be  actionable.7  And  held  actionable  to 
charge  one  with  the  unauthorized  publication  of  private 
letters;8  or  with  entering  into  a  corrupt  agreement  to 
benefit  himself  at  the  expense  of  the  public,  and  if  elected 
to  the  Senate  would  use  his  influence  to  defeat  the  public 
interest  and  benefit  himself;9  or  imputing  to  one  who  is 
an  author  a  disregard  of  justice  and  propriety  as  a  man, 
and  as  being  infatuated  with  vanity,  mad  with  passion, 
and  the  apologist  from  force  of  sympathy  of  another  stig- 
matized with  ingratitude  and  perfidy,  and  as  having  pub- 
lished as  true  statements  falsified  and  encomiums  retracted.10 
So  it  was  held  actionable  to  publish  of  one  that  he  was 


1  Perkins  v.  Mitchell,  31  Barb.  4G1. 

a  Clement  v.  Chivis,  9  B.  &  Cr.  172;  4  M.  &  R.  127. 

3  Bod  well  v.  Osgood,  3  Pick.  379. 

4  Ilallock  v.  Miller,  2  Barb.  632. 

6  Rex  v.  Kinnersley,  1  W.  Black.  294;  and  see  Caldwell  v.  Raymond,  2  Abb.  Pra. 
R.  193. 

6  McBride  v.  Ellis,  9  Rich.  Law,  So.  Ca.  313. 
1  Robertson  v.  McDougall,  4  Bing.  070. 

8  Bacon  v.  Beach,  5  N.  Y.  Legal  Observer,  448. 

9  Powers  v.  Dubois,  17  Wend.  63. 

10  Cooper  v.  Stone,  24  Wend.  434. 

17 


250  WHAT   WRITTEN   LANGUAGE  [Cll.  YIII. 

"  as  versatile  as  Monroe  Edwards  (a  noted  forger)  in  cir- 
cumventing the  law  of  right ;" *  or  that  he  fraudulently 
deceived  another  as  to  a  fact,  so  as  to  induce  him  to  in- 
dorse a  note  for  a  larger  sum  than  he  intended ; 2  or  that 
he  was  prominent  in  the  corrupt  legislation  of  last  winter  f 
or  of  one  soliciting  charity  that  she  prefers  unworthy 
claims ; 4  or  of  one  that,  although  aware  of  the  death  of  a 
person  occasioned  by  his  improperly  driving  a  carriage,  he 
attended  a  public  ball  on  the  evening  of  the  same  day ; 5 
or  of  a  man,  that  he  attended  a  political  meeting  while  his 
wife  lay  dead  and  unburied ; 6  or  of  one  who  had  con- 
tracted to  relay  a  road  with  new  material,  that  he  had 
used  old  material ; 7  and  held  actionable  where  a  public 
officer  published,  in  a  report  of  an  official  investigation 
into  his  conduct,  the  following  comments  upon  the  testi- 
mony of  a  witness  before  the  commissioners  of  inquiry : 
"  I  am  extremely  loath  to  impute  to  the  witness,  or  his 
partner,  improper  motives  in  regard  to  the  false  accusa- 
tions against  me ;  yet  I  cannot  refrain  from  the  remark 
that,  if  their  motives  have  not  been  unworthy  of  honest 
men,  their  conduct  in  furnishing  materials  to  feed  the  flame 
of  calumny  has  been  such  as  to  merit  the  reprobation  of 
every  man  having  a  particle  of  virtue  or  honor.  They 
have  both  much  to  repent  of  for  the  groundless  and  base 
insinuations  they  have  propagated  against  me." 8    The  de- 


1  Cramer  v.  Noonan,  4  "Wis.  231. 

2  Kerr  v.  Force,  3  Cr.  C.  C.  8. 

3  Littlejohn  v.  Greeley,  13  Abb.  Pra.  R.  41. 

4  Hoare  v.  Silverlock,  12  Q.  B.  624. 
6  Churchill  v.  Hunt,  1  Chit.  R.  480. 

6  The  People  v.  Atkins,  42  Verm.  252. 

7  Baboneau  v.  Farrell,  27  Eng.  Law  &  Equity  R.  339;  13  Com.  B.  360;  24  Law 
Jour.  R.,  N.  S.,  C.  P.  9;   1  Jur.'N.  S.  114. 

8  Clark  v.  Binney,  2  Pick.  113.  It  was  held  actionable  to  publish,  If  any  person 
can  ascertain  that  I.  D.  (the  plaintiff)  was  married  previous  to  10  August,  1799.  with 
an  innuendo  meaning  that  he  was  married  prior  to  the  date  mentioned,  and  had  an- 
other wife  living,  he  being  then  married  to  E.  his  present  wife.  (Delaney  v.  Jones,  4 
Esp.  191.) 


§    177  (t.~\  IS   ACTIONABLE.  251 

fendant  wrote  a  letter,  in  which,  referring  to  plaintiff,  he 
said :  "  D.  keeps  a  well-spread  table,  bnt  I  always  consider 
myself  in  a  family  hotel  when  my  legs  are  under  his  table, 
for  the  bill  is  sure  to  come  in  sooner  or  later,  though  I 
rarely  dabble  in  the  mysteries  of  ecarte  or  any  other  game. 
The  fellow  is  as  deep  as  Crockford  and  as  knowing  as  the 
Marquis."  This  language  was  held  libellous.1  So  this 
language  was  held  actionable :  "  As  you  will  make  consid- 
erable by  being  summoned  to  court,  I  will  advise  you  to 
go  and  pay  George  Bowman  the  balance  you  owe  him  for 
his  wild  hogs  you  killed.11 2  Where  the  declaration  set 
out  a  letter  addressed  by  defendant  to  the  clerk  of  the 
board  of  guardians  of  a  poor-law  union,  in  respect  of  an 
allowance  ordered  by  said  board  toward  the  maintenance 
of  the  mother  of  plaintiff  and  defendant,  the  letter  stated 
that  the  plaintiff  "has  for  years,  without  the  slightest 
cause,  systematically  done  everything  she  can  to  annoy  me 
(defendant),  and  I  am  sorry  to  say  my  mother  is  only  too 
glad  to  assist  her.  Some  years  ago  they  dragged  me  into 
chanceiy,  and  almost  every  term  I  am  obliged  to  appear  by 
counsel  before  the  Vice-Chancellor.  They  had  no  business  to 
include  me  in  the  bill,  as  I  make  no  claim  to  my  late  father's 
property.  But  of  course  it  is  a  pleasure  to  my  mother 
and  Miss  Fray  (plaintiff)  to  put  me  to  all  the  expense 
they  can.  Doubting  as  I  do  my  mother's  extreme  poverty, 
I  think  the  proper  test  of  it  is  an  order  for  the  workhouse, 
the  expense  of  which  should  be  borne  proportionately  by 
all  her  children;  and  as  Miss  Fray  (plaintiff)  is  a  lady  of 
independence,  and  a  single  woman,  and  can  find  the  money 
for  carrying  on  all  sorts  of  law  proceedings,  she  should  not 
be  exempted,11  held,  on  demurrer,  that  the  declaration  dis- 
closed a  cause  of  action.3     And  so  where  the  defendant 


1  Dif;by  v.  Thompson,  4  B.  <fc  Adol.  821. 

2  Adams  v.  Lawson,  17  Grat.  250. 

3  Fray  v.  Fray,  34  Law  Jour.  C.  P.  45.     It  may  interest  some  of  our  readers  to 
know  that  the  plaintiff,  a  lady,  argued  the  demurrer  in  person. 


252  WHAT   WRITTEN    LANGUAGE  [Cll.    YHX 

wrote  and  published  of  the  plaintiff,  a  hotel  and  job  coach 
proprietor  by  trade,  and  a  Presbyterian  by  religion,  that 
from  mere  motives  of  intolerance  he  had  refused  the  use 
of  his  hearse  for  the  funeral  of  his  deceased  servant,  be- 
cause the  body  was  about  to  be  interred  in  a  Eoman 
Catholic  cemetery,  held,  overruling  a  demurrer  to  the  de- 
claration, that  the  court  could  not  so  clearly  see  that  the 
language  might  not  be  actionable  as  to  justify  the  with- 
drawal of  the  case  from  a  jury.1  And  as  a  rule  the  court 
on  demurrer  will  not  construe  the  words  mitiori  sensu, 
but  will  see  if  there  is  anything  in  the  language  which  by 
a  reasonable  intendment  is  actionable.2 

§  178.  It  is  not  actionable  to  charge  one  in  writing 
with  a  breach  of  conventional  etiquette,8  or  with  an  inten- 
tion to  put  money  into  Wall  street  for  shaving  purposes,4 
or  of  having  brought  suit  against  one's  mother-in-law.5 
So  the  words,  "  the  Kev.  John  Robinson  and  Mr.  James 
Robinson,  inhabitants  of  this  town,  not  being  persons 
that  the  proprietors  and  annual  subscribers  think  it 
proper  to  associate  with,  are  excluded  this  room,"  pub- 
lished by  posting  a  paper  on  which  they  were  written, 
purporting  to  be  a  regulation  of  a  particular  society,  held 
not  to  be  actionable.6     It  was  held  not  libellous  to  pub- 

1  Teacy  v.  McKenna,  4  Ir.  R.  C.  L.  374. 

8  Mawe  v.  Pigott,  4  Ir.  R.  C.  L.  54 ;    ante,  note  2,  p.  182. 

3  Clay  v.  Roberts,  8  Law  Times,  N.  S.  397 ;  9  Jur.  N.  S.  580.  The  charge  was 
that  plaintiff,  an  allopathic  physician,  met  homceopathists  in  consultation,  and  that  in 
the  opinion  of  the  profession  it  was  improper  so  to  do,  and  against  etiquette;  and, 
further,  that  in  the  opinion  of  the  profession  it  was  disgraceful  for  an  allopath  to 
meet  a  homoeopath  in  consultation. 

1  Stone  v.  Cooper,  2  Denio,  293. 

6  Cox  v.  Cooper,  9  Law  Times,  N.  S.  329.  Defendant  published  in  a  newspaper  as 
a  report  of  a  proceeding  in  court ;  C.  v.  G.  When  this  cause  was  called,  the  plaintiff 
was  not  in  court,  upon  which  A.,  who  appeared  for  the  defendant  (the  plaintiff's 
mother-in-law),  applied  for  costs,  which  were  allowed,  and  the  case  struck  out.  The 
declaration  alleged  that  it  did  not  appear  by  the  proceedings  in  court  that  the 
defendant  was  plaintiff's  mother-in-law,  and  that  that  fact  was  maliciously  stated  to 
create  an  unfavorable  impression  against  plaintiff,  and  a  suspicion  of  him,  and  that 
he  ought  to  be  regarded  with  suspicion  of  being  guilty  of  something  wrong  in  suing 
his  mother-in-law,  but  held  no  cause  of  action  disclosed. 

6  Robinson  v.  Jcrmyn,  1  Price,  11. 


§  178.]  IS    ACTIONABLE.  253 

lisli  of  one  who  was  a  druggist,  "The  above  druggist 
refusing  to  contribute  his  mite  with  his  fellow  merchants 
for  watering  Jefferson  avenue,  I  have  concluded  to  water 
the  avenue  in  front  of  his  store  for  one  week." 1  And 
held  not  actionable  to  publish  of  one  that  was  engaged  in 
a  "  gambling  fracas "  arising  out  of  a  dispute  at  pla/y, 
there  being  no  averment  that  illegal  play  was  intended.3 
Where  a  paragraph  in  a  newspaper  merely  stated  that  a 
bill  had  been  drawn,  and  that  the  acceptance  had  been 
forged  or  obtained  by  fraud,  but  threw  no  imputation  on 
the  drawer  (the  plaintiff),  nor  insinuated  that  the  plaintiff 
had  practised  the  fraud  or  committed  the  forgery,  it  was 
held  not  to  amount  to  a  libel  on  the  plaintiff.3  And 
where  it  was  stated  that  the  plaintiff  purchased  a  news- 
paper and  gave  his  note  for  it ;  that  he  was  unable  to  pay 
the  note,  and  begged  for  delay ;  and  that  subsequently, 
when  sued  upon  it,  he  pleaded  the  statute  of  limitations 
successfully;  held  that,  there  being  no  charge  of  dishon- 
esty, the  publication  was  not  libellous.4  So  where  the 
defendant  published  of  the  plaintiff  that  he  was  "  a  purse- 
proud  aristocrat ;"  that  he  desired  to  put  down  the  United 
States  Bank  to  make  stock  held  by  him  in  other  banks 
more  valuable;  that  he  was  an  office-holder,  and  that  he 
wanted  to  increase  his  means  by  oppressing  the  farmer 
and  mechanic;  that  he  attacked  Mr.  Webster  to  gratify 
his  propensity  for  misrepresentation  with  other  charges. 
On  demurrer  to  the  declaration,  the  court  held  that  there 

1  The  People  v.  Jerome,  1  Manning's  Mich.  R.  142. 
■  Forbes  v.  King,  1  Dowl.  672. 

3  Stockley  v.  Clement,  4  Bing.  1 62. 

4  Bennett  v.  "Williamson,  4  Sand.  60.  The  author  was  of  counsel  with  the  plaintiff 
in  this  case,  and  believes  the  decision  has  never  been  regarded  as  authoritative.  In 
Cox  v.  Lee,  Law  Rep.  IV.  Ex.  284,  the  charge  was -somewhat  similar  to  that  in  Ben- 
nett v.  Williamson,  and  a  verdict  for  the  plaintiff  was  upheld.  Where  the  charge 
w:i-,  "  This  Major  Noah,  the  knight  of  the  broken  seal,  who  converted  to  his  own  u-;e 
property  known  to  be  stolen,  meaning  he  obtained  possession  of  a  political  letter 
addressed  to  another  person,  which  he  hid  published,"  the  jury  failed  to  agree. 
(Noah's  Case,  3  City  Hall  Recorder,  18.)  Opening  a  letter  and  detaining  it  merely 
from  curiosity  or  political  motives,  held  to  be  a  trespass  only,  and  not  a  felony. 
(Rex  v.  Godfrey,  8  C  <fe  P.  563.) 


25-1  LANGUAGE   COISTCER^NG  [Cll.  VIII. 

was  nothing  in  this  language  "  calculated  seriously  to 
degrade  "plaintiff,  and  allowed  the  demurrer.1  Defend- 
ant wrote  of  plaintiff,  an  attorney :  "  I  will  give  you  an 
anecdote  of  R.  (plaintiff),  as  told  to  me.  "W.,  who  was 
considered  an  opulent  farmer,  and  thought  himself  such, 
sent  for  R.  to  make  his  will,  which  he  did,  and  bequeathed 
to  his  wife  and  family  £7,500.  R.  attended  the  opening 
of  the  will.  The  family  were  pleased,  when  lo,  and 
behold !  and  now  comes  the  tale.  R.  produces  a  bill 
for  £7,500  for  business  done  for  the  last  fifteen  years, 
pounces  on  the  property,  and  possesses  every  shilling  to 
this  day.  So  the  story  has  been  told  to  me."  On  de- 
murrer to  the  declaration,  held  by  the  majority  of  the 
court  that  the  language  was  not  libellous.2 

§  179.  There  is  a  distinction  as  to  its  actionable  quality 
between  language  concerning  an  individual  as  such,  and 
language  concerning  one  in  certain  capacities  or  special 
characters.  Heretofore  in  this  chapter  the  attention  has 
been  solely  directed  to  language  concerning  an  individual 
as  such;  we  have  now  to  consider  what  language  concern- 
ing one  in  certain  acquired  capacities  or  special  characters 
is  actionable  per  se  f  Language  which  is  actionable,  if 
published  of  an  individual  as  such,  does  not  cease  to  be 
actionable  because  published  of  one  in  a  special  character ; 
and  all  lano-uas-e  which  is  actionable  as  concernino-  an 
individual  as  such,  must  also  be  actionable  when  it  con- 
cerns him  in  any  special  character  of  the  kind  presently 
to  be  mentioned.  Our  present  inquiry  is  limited  to  that 
language  which,  not  being  actionable  when  published  of 
an  individual  as  such,  becomes  actionable  when  published, 
and  because  it  is  published,  of  him  in  some  special 
character  or  relation.  The  effect  of  the  special  character 
of  the  publisher,  and  of  the  person  to  whom  the  publica- 
tion is  made,  will  be  considered  under  the  head  of  defences. 
Where   the  language  is  actionable  as  concerning  an  in- 

1  Tapham  v.  Wilson,  7  Ham.  190.     This  case  cannot  be  regarded  as  an  authority. 

2  Reeves  v.  Templar,  2  Jur.  137. 


§§  180,  181.]  SPECIAL  OHAEACTEES.  255 

dividual  as  such,  it  is  unimportant  and  mmecessary,  except 
in  some  cases  as  affecting  the  amount  of  damages,  to 
inquire  further  whether  such  language  is  also  actionable 
as  concerning  him  in  some  special  character ;  as  thus,  where 
an  action  was  for  language  alleged  to  be  concerning  the 
plaintiff  generally  and  concerning  him  as  an  attorney,  the 
language  being  actionable  as  concerning  the  plaintiff 
generally,  it  was  held  that  he  might  sustain  the  action 
without  proof  of  his  being  an  attorney.1 

§  180.  The  distinction  maintained  between  oral  and 
written  language,  as  regards  its  actionable  quality  when 
published  concerning  an  individual  as  such,  is  not  re- 
cognized in  regard  to  language  concerning  one  in  a  special 
character.  As  respects  language  concerning  one  in  a 
special  character,  it  makes  no  difference,  as  we  suppose,  in 
regard  to  its  actionable  quality,  whether  it  be  published 
orally  or  in  writing.2  Because  the  language  in  writing 
which  concerns  one  in  a  special  character,  is  usually 
actionable  when  published  concerning  the  individual  as 
such,  and  without  reference  to  his  special  character ;  it  is 
almost  exclusively  in  respect  to  oral  language  that  questions 
arise  as  to  whether  it  is  or  is  not  actionable  as  affecting 
one  in  a  special  character. 

§  181.  In  connection  with  our  present  inquiry,  it  must 
be  remembered  that  no  special  character  which  one  may 
occupy  can  enhance  his  rights  to  protection,  for  that  would 
be  in  derogation  of  the  rule  to  which  reference  has  hereto- 
fore  been  made  (§  138).  Whatever  may  be  the  special 
character,  the  right  must  be  the  same  as  the  right  of  every 
other  individual,  the  right  that  no  one  shall,  without  legal 
excuse,  publish  language  concerning  another  or  the  affairs 

J  Lewis  v.  Walter,  4  D.  &  Ry.  810 ;    Harwood  v.  Astley,  4  B.  &  P.  87. 

3  Holt  on  Libel,  218.     But  he  adds,  "though   defamation  when  written  may  be 

actionable  under  certain  circumstances  when  the  same  words  if  spoken  would  not." 
See  in  note  to  §  18,  atitc,  and  note,  p.  250,  pout. 


256  WHAT   LANGUAGE   IS    ACTIOXABLE        [Ch.  VIII. 

of  another  which  shall  occasion  him  damage  (§§  70,  49), 
that  is,  pecuniary  loss.  But  although  one  by  virtue  of 
his  special  character  has  no  right  superior  to  that  of  an 
individual  as  such,  and  who  does  not  possess  any  special 
character,  yet  it  must  be  obvious  that  one  may  occupy  a 
position  in  society  which  will  render  it  easier  to  occasion 
him  damage  than  to  occasion  damage  to  one  not  so 
situated.  The  position  of  a  person  may  render  him 
peculiarly  obnoxious  to  injury.  It  is  this  special  suscep- 
tibility to  injury  alone,  that  creates  the  distinction  between 
the  actionable  quality  of  language  when  it  concerns  one 
in  a  special  character  and  when  it  concerns  him  only  as  an 
individual.  It  is  not  every  special  character  the  possession 
of  which  renders  its  possessor  more  than  ordinarily  sus- 
ceptible to  injury  by  language,  and  this  being  so  we  have 
to  ascertain  which  are  the  special  characters  that  have  such 
an  effect.  It  is  not  possible  to  particularize  the  special 
characters  which  entail  this  greater  degree  of  liability  to 
injury,  but  it  may  be  stated  generally  that  every  legal 
occupation  or  position  from  which  pecuniary  benefit  may 
or  possibly  can  be  derived,  will  create  in  the  follower  of 
such  occupation,  or  the  holder  of  such  position,  that  peculiar 
or  special  susceptibility  to  injury  by  language  to  which 
reference  has  already  been  made ;  and  hence  results  this 
rule,  that  language  concerning  one  in  any  such  lawful 
occupation  or  position  may,  as  a  necessary  consequence, 
occasion  him  damage  which  would  not  have  that  con- 
sequence if  it  concerned  him  as  an  individual  merely ; 
and  therefore,  as  heretofore  (§  132)  observed,  language 
which  would  not  be  actionable  if  it  concerned  only  an 
individual  as  such,  may  be  actionable  if  it  concerns  him 
in  his  special  character.1     The  rule  which  makes  language 

1  Brown  v.  Smith,  13  C.  B.  596.  "For  the  reason  that  from  the  nature  of  the 
case  it  is  evident  damage  must  ensue."  (McMillen  v.  Birch,  1  Binn.  ITS.)  "The 
law  has  always  been  very  tender  of  the  reputation  of  tradesmen,  and  therefore 
words  spoken  of  them  in  the  way  of  their  trade  will  bear  an  action  that  will  not  be 
actionable   in  the   case  of  another  person ;    and  if  bare   words   are   so,  it   will  be 


§  182.]  CONCERNING    SPECIAL   CHARACTERS.  257 

concerning  one  in  a  special  character  sometimes  actionable, 
when  the  same  language  concerning  one  as  an  individual 

kD  CD  O 

merely  would  not  be  actionable,  is  in  reality  nothing  more 
than  a  phase  of  the  rule  (§  134)  that  language  connected 
with  any  fact  affecting  its  meaning  or  effect,  must  be  con- 
strued in  connection  with  such  fact.  The  language  being 
connected  with  the  fact  of  the  special  character  of  the 
person  whom  it  concerns,  must  be  construed  in  reference 
to  such  special  character. 

§  182.  Limiting  ourselves  for  the  present  to  occupa- 
tions, we  conclude  that  subject  only  to  the  conditions  (1) 
that  the  occupation  is  one  in  which  a  person  may  lawfully 
be  engaged,  and  (2)  that  it  is  an  occupation  which  does 
or  reasonably  may  yield,  or  may  be  expected  to  yield, 
pecuniary  reward,  there  is  no  employment — call  it  business, 
trade,  profession  or  office,  or  what  you  will 1  — so  huinble 
or  so  exalted  but  that  language  whicji  concerns  the  person 
in  such  his  employment  will  be  actionable,  if  it  affects  him 
therein  in  a  manner  that  may,  as  a  necessary  consequence, 
or  does  as  a  natural  and  proximate  consequence,  prevent 
him  deriving  therefrom  that  pecuniary  reward  which  prob- 
ably he  might  otherwise  have  obtained.2  West  ate  the 
rule  much  broader  than  usual.  Ordinarily  it  is  said  that 
the  language  must  concern  one  in  his  business,  profession, 
or  office,  and  then  is  discussed  what  occupations  are  com- 
prised within  the  terms  business  or  profession,  and  what 
kind  of  office  is  intended.     In  one  case 3  it  was  said  obiter 


stronger  in  the  case  of  a  public  newspaper  -which  is  so  diffusive."  (Harman  v. 
Delany,  2  Str.  898.)  "In  case  of  slander  of  a  person  in  the  way  of  his  trade,  the 
fact  of  his  being  in  trade  stands  in  the  place  of  special  damage."  (Williams,  J., 
Rolin  v.  Steward,  14  C.  B.  G03.) 

1  Business  includes  trade  and  more.  "Trade  has  a  more  restricted  meaning  than 
business."  (Harris  v.  Amiry,  Law  Rep.  II,  154,  C.  P.)  The  words  Business  embraces 
everything  about  which  a  person  can  be  employed.  (Parker  Mills  v.  Com'rs  of 
Taxes,  23  N.  Y.  244.) 

2  Foulger  v.  Newcomb,  Law  Rep.  II,  32V,  Ex.     See  note  1,  p.  258,  post. 

3  Wharton  v.  Brook,  1   Vent.  21.     Where  I.  S.  said  to  A.,  who  kept  a  stable  and 


258  WHAT   LANGUAGE   IS    ACTIONABLE        [Cll.  YIII. 

that  to  call  a  woman  who  taught  children  to  read  and 
write  (a  school-teacher  or  school-mistress)  a  whore  was 
not  actionable,  because  she  was  not  in  a  business  or  pro- 
fession. For  the  same  reason,  Lord  Hale,  in  another  case, 
was  for  denying  the  right  to  recover  to  a  letter-carrier 
charged  with  breaking  open  letters.  The  tenor  of  his 
Lordship's  remarks  was  that  if  such  an  action  could  be 
maintained,  a  man  should  not  speak  disparagingly  of  his 
cook  or  his  groom  but  an  action  would  be  brought.1  It 
was  said  of  a  renter  of  tolls  that  he  was  not  in  a  business 
or  profession  in  which  he  could  be  slandered  or  libelled,2 
and  the  like  was  held  of  a  stock  broker.3  On  the  other 
hand,  it  has  been  held  that  the  business  need  not  be  one 
which  renders  him  who  follows  it  liable  as  a  trader  to  the 
bankrupt  law,4  and  that  the  same  rule  applies  to  a  mere 
trader  or  retail  dealer  as  to  a  merchant.5    It  was  supposed 

received  horses  at  livery  (a  livery-stable  keeper),  "  Thou  buyest  nothing  but  rotton 
hay  to  poison  men's  horses,"  it  was  held  that  A.  could  not  maintain  an  action  there- 
for because  he  was  not  of  any  trade  allowed  in  law.  (Jones  v.  Joice,  Vin.  Abr.  Act.  for 
Words,  U.  a.  7.)  Livery-stable  keeping  is  recognized  as  a  business  in  which  one  may 
be  libelled.     See  Southam  v.  Allen,  Rayni.  231 ;    Alexanders.  Angle,  1  Cr.  &  J.  143. 

1  1  Vent.  275.  "  The  humility  of  the  employment  or  occupation  seems  no  objec- 
tion to  the  action,  either  in  law  or  in  reason."  (1  Starkie  on  Slander,  128;  and  see 
Cooke  on  Defam.  21;  Terry  v.  Hooper,  Lev.  115.)  The  courts  have  not  one  rule 
for  one  individual,  and  a  different  rule  for  another,  or  one  for  the  rich  and  another 
for  the  poor.  (Rex  v.  L'd  Cochrane,  3  Maule  &.  S.  10;  Sinclair  V.  Charles  Phillipe, 
2  B.  &  P.  363.)  In  Cockaine  v.  Hopkins,  2  Lev.  214,  the  plaintiff  alleged  that  he 
used  the  art  of  buying  and  selling  and  gained  great  profit  thereby,  and  that  defendant 
said  of  him,  He  is  a  runagate,  whereby  he,  plaintiff,  lost  his  customers,  hut  did  not 
allege  special  damage ;  after  verdict  for  plaintiff,  judgment  was  arrested  because,  as 
the  court  said,  runagate  was  not  equivalent  to  bankrupt,  and  as  plaintiff  did  not 
allege  what  trade  he  followed.it  might  be  a  tinker  or  pedlar,  who  is  a  rogue  by 
statute.  This  presuming  that  plaintiff's  trade  is  unlawful  was  clone  in  Morris  v. 
Langdale,  2  Bos.  &  Pul.  284  ;  but  at  this  day  the  presumption  would  be  the  other 
way.     See  post,  note  4,  p.  260. 

2  Bellamy  v.  Burch,  16  M.  tfe  W.  590;  and  see  Sellars  v.  Killew,  7  Dowl.  ±  R. 
121;    4  B.  &  C  55. 

3  Morris  v.  Langdale,  2  Bos.  <fe  Pul.  284. 

4  Whitaker  v.  Bradley,  7  D.  &  R.  649;  S.  C.  Whittington  v.  Gladwin.  5  B.  A  C. 
180;    2  Car.  &  P.  146. 

B  Gates  v.  Bowker,  8  Verm.  (3  Wash)  23;  Ostrom  v.  Calkins,  5  "Wend.  264; 
Carpenter  v.  Dennis,  3  Sandf.  305. 


§  183.]  CONCERNING   SPECIAL   CHARACTERS.  239 

formerly  tliat  the  rule  was  limited  to  occupations  by 
which  the  person  whom  the  language  concerned  obtained 
his  livelihood  or  "  daily  bread ; "  but  such  a  limitation, 
if  it  ever  existed,  no  longer  prevails.  It  is  now  held  to 
be  sufficient  if  the  person  whom  the  language  concerns 
habitually  (as  distinguished  from  occasionally)  acts  in  or 
pursues  the  occupation  to  derive  an  emolument  from  it.1 
Where  it  was  objected  against  the  plaintiff's  right  to 
recover  that  it  was  not  alleged  he  got  his  living  by  his 
occupation,  the  objection  was  overruled.2 

§  183.  We  mentioned  in  the  last  preceding  section 
(§  182)  as  one  of  the  conditions  to  the  right  of  action  for 
language  concerning  one  in  his  occupation,  that  the  occupa- 
tion must  be  a  lawful  one.  It  is  a  universal  rule,  of  which 
very  numerous  examples  are  to  be  found  in  the  reports, 
that  one  engaged  in  an  unlawful  pursuit  cannot  recover 
for  work  done  or  goods  sold  by  him,  nor  for  any  injury  he 
may  sustain  in  such  occupation ; 8  hence,  for  language  con- 
cerning a  person  in  an  unlawful  occupation,  an  action  is 
not  maintainable.  Thus  it  was  held  that  pugilistic  exhi- 
bitions being  illegal,  one  could  not  maintain  an  action  for 
language  affecting  him  as  proprietor  of  a  tennis  court 
where  such  exhibitions  were  made ; 4  and  semble  one  who 

1  Baboneau  v.  Farrell,  15  C.  B.  360;  Bryant  v.  Loxton,  11  Moore,  344;  Davis  v. 
Davis,  1  Nott  &,  M'C.  290.  "  The  action  seems  to  extend  to  words  spoken  of  a 
person  in  any  lawful  employment  in  which  he  may  gain  his  livelihood."  (1  Starkie 
on  Slander,  127.)  "It  does  not  appear  to  be  necessary  that  the  party  should  gain 
his  living  in  the  character  to  which  the  slander  is  applied,  but  it  is  sufficient  if  he 
habitually  act  in  that  character  and  derive  emolument  from  it.     {Id.  129.) 

2  Dobson  v.  Thorstone,  3  Mod.  112. 

3  Timmerrnan  v.  Morrison,  14  Johns.  369;  Allcott  v.  Barber,  1  Wend.  526  ;  Smith 
v.  Tracy,  2  Hall,  465 ;  Bailey  w.Mogg,  4  Denio,  60;  Finch  v.  Gridley,  25  Wend.  469; 
Smith  if.  Wilcox,  24  X.  Y.  353;  s.  c.  19  Barb.  581,  and  25  Barb.  341;  Cundell  v.  Daw- 
son, 4  C.  B.  476  ;  Best  v.  Bauder,  29  How.  Pr.  R.  489  ;  Ferdon  v.  Cunningham,  20  id. 
154;  Cope  v.  Rowland,  2  M.  &  W.  149;  Smith  v.  Mawhood.  14  M.  &  W.  452  ;  Seneca 
County  B'k  v.  Lamb,  26  Barb.  595;  Barton  v.  Port  Jackson  Plank  Road,  17  Barb.  397  ; 
Griffith  v.  Wells,  3  Denio,  227 ;  Bell  v.  Quinn,  2  Sandf.  146;  Taylor  v.  Crowland  Gas 
Co.,  10  Ex.  293;  18  Jur.  913;  26  Eng.  Law  &  Eq.  R.  460;  Cowan  v.  Milbourn,  2  Law 
Rep.  230,  Ex. ;  2  Pars,  on  Cont.  259  ;  Story  on  Contr.  620. 

4  Hunt  v.  Bell,  1  Bing.  1. 


260  WHAT   LANGUAGE   IS   ACTIONABLE        [Cll.  VIII. 

practices  as  a  physician  without  being  duly  licensed  can- 
not maintain  an  action  for  language  concerning  him  as  a 
physician.1  The  fact,  however,  that  a  person  is  engaged 
in  an  unlawful  occupation  is  no  reason  for  his  not  being 
allowed  his  action  for  any  language  concerning  him  as  an 
individual,  or  concerning  him  in  any  other  and  lawful 
occupation  in  which  he  may  be  engaged.2  If  the  language 
be  actionable  as  concerning  the  person  as  an  individual 
merely,  it  is  unimportant  and  unnecessary  to  inquire  fur- 
ther whether  he  is  in  any  or  in  what  occupation,  legal  or 
otherwise.3  If  the  illegality  of  the  occupation  proceeds 
from  the  fact  that  the  person  following  it  is  not  duly 
licensed,  the  burden  is  on  the  publisher  to  show  that  the 
person  whom  the  language  concerns  was  unlicensed.4 

§  184.  As  to  the  kind  of  office  which  one  must  hold  to 
render  actionable  language  which  concerns  him  in  such 
office,  it  is  laid  down  by  Starkie,  but  as  we  conceive  erro- 
neously, that  "  words  are  equally  actionable,  whether  the 
office  be  lucrative  or  merely  confidential." 5  Pecuniary  loss 
is  the  gist  of  the  action  for  slander  or  libel  (§  57) ;  and 
as  no  pecuniary  loss  can  result  from  language  concerning 

1  Marsh  v.  Davison,  9  Paige,  580,  referring  to  a  statute  since  repealed. 

s  Yrisarri  r.  Clement,  2  C.  <fc  P.  223 ;  3  Bing.  432 ;  11  Moore,  308 ;  Greville  >■.  Chap- 
man, 1  D.  &  M.  553;  Cheney  v.  Goodrich,  98  Mass.  224.  In  Manning  v.  Clements,  1 
Bing.  362 ;  5  M.  &  P.  211,  the  plaintiff  alleged  he  was  a  manufacturer  of  bitters,  and 
defendant  was 'allowed  to  introduce, evidence  of  the  illegality  of  such  manufacture 
(namely,  that  the  alleged  bitters  were  another  and  a  prohibited  article),  not  as  a  justi- 
fication, but  in  contradiction  of  plaintiff's  allegation. 

3  Harwood  v.  Astley,  4  Bos.  &  P.  47  ;  Lewis  v.  Walter,  4  D  &  Ry.  810. 

4  Fry  v.  Bennett,  28  N.  T.  324;  Smith  v.  Joyce,  12  Barb.  25.     See  note  3,  p.  268. 

6  1  Starkie  on  Slander,  119.  He  states  that  the  whole  class  of  cases  in  which  re- 
covery has  been  had  for  words  affecting  one  in  office  not  lucrative,  "  seems  to  rest  on 
more  dubious  principles  than  any  other."  At  page  122  he  says — erroneously  as  we 
conceive — "  the  danger  of  exclusion  from  office  gives  rise  to  the  action."  And  *t  page 
118  he  says  the  ground  of  action  is  "somewhat  different"  according  as  the  office  is 
confidential  or  lucrative.  And  at  page  124  he  says  "the  action  appears  to  extend  to 
all  offices  of  trust  or  profit  without  limitation,  provided  they  be  of  a  temporal  nature." 
This  word  temporal  is  used  as  the  converse  of  spiritual,  to  exclude  the  ecclesiastical 
jurisdiction. 


§  185.]  CONCERNING    SPECIAL    CHARACTERS.  261 

one  ill  an  office  which  yields  no  pecuniary  emolument, 
words  not  otherwise  actionable  cannot  become  so  because 
they  concern  one  in  such  an  office.1  Whatever  may  have 
been  the  doctrine  and  practice  of  the  Court  of  the  Star- 
Chamber,  or  of  the  common  law  courts  under  the  statutes 
scandalum  magnatum,  we  believe  that  no  court  proceed- 
ing according  to  the  common  law,  and  independently  of 
any  statute,  has  sanctioned  the  doctrine  as  laid  down  by 
Starkie.  Wherever  lano-uao-e  concerning  one  in  an  office 
merely  honorary  has  in  a  common  law  court,  and  inde- 
pendently of  any  statute,  been  held  actionable,  it  will  be 
seen  that  the  lano;uao;e  would  have  been  actionable  had  it 
been  published  of  an  individual  as  such. 

§  185.  Another  relation  or  special  character  in  which 
one  may  be  injuriously  affected  by  language,  is  that  of 
partner.  Language  may  concern  partners  or  one  or  some 
of  several  partners  in  their  or  his  individual  capacity 
merely,  or  it  may  touch  them  or  him  in  their  or  his  part- 
nership business.  As  respects  language  concerning  one 
who  is  a  partner,  and  which  concerns  him  as  an  individual 
merely,  the  fact  of  his  being  a  partner,  unless,  perhaps,  as 
affecting  the  damages,  has  no  significance.  Language  con- 
cerning partners  in  their  partnership  business  may  be 
actionable  per  se,  or  actionable  only  by  reason  of  the  spe- 
cial damage.  That  language  touching  the  business  which 
would  be  actionable  per  se  if  published  concerning  one 
who  is  not  a  partner,  would  be  actionable  per  se  as  con- 
cerning partners  or  one  who  is  a  partner.  Actionable 
language  concerning  partners,  and  which  touches  them  in 

1  Gallwey  v.  Marshall,  9  Ex.  294.  In  that  action  the  language  (oral)  imputed  in- 
continence to  a  clergyman.  The  court,  in  deciding  against  the  plaintiff,  said:  We 
should  have  no  doubt  of  the  plaintiff's  right  to  recover  if  the  declaration  had  averred 
that  he  was  beneficed,  or  was  in  the  actual  receipt  of  professional  temporal  emolument, 
*  *  as  the  charge  would  have  caused  the  loss  of  the  benefice  or  the  emoluments. 
In  the  absence  of  any  averment  of  plaintiff  having  any  office  of  temporal  (pecuniary) 
profit,  we  are  not  satisfied  this  action  will  lie.  There  is  no  authority  that  it  will  where 
there  is  no  actual  damage. 


262  WHAT   LANGUAGE   IS    ACTIONABLE        [Cll.    \TH. 

their  partnership  business,  is  an  injury  to  their  joint  busi- 
ness, and  is  a  joint  and  several  injury,  for  which  both  may 
sue  jointly  or  either  may  sue  separately.  Thus  where  the 
language  imputed  to  two  persons,  who  were  partners  as 
wool-staplers,  that  they  had  been  guilty  of  fraud  in  a  sale 
of  wool,  and  they  sued  jointly,  alleging  special  damage  to 
their  trade,  the  action  was  sustained.1  For  words  charg- 
ing partners  with  making  an  assignment  to  defraud  their 
creditors,  an  action  by  one  partner  was  allowed ; 2  and 
where  the  firm  was  charged  with  insolvency,  the  language 
used  being  "  J.  T.  &,  Co.  are  down,"  held  a  joint  action 
might  be  maintained.3  In  such  a  joint  action  no  damages 
are  recoverable  for  the  injury  to  the  feelings  of  the  part- 
ners.4 Where  language  concerns  one  only  of  several  part- 
ners, but  touches  him  in  his  partnership  business,  there  is 
an  injury  to  the  partnership  business,  for  which  the  part- 
ner whom  the  language  concerns  may  sue  alone,  or  all  the 
partners  may  unite  with  him.  Thus  where  the  language 
was  of  one  of  several  partners  as  bankers,  and  imputed  to 
him  insolvency,  and  for  this  he  alone  brought  suit  alleging 
damage  to  the  partnership  business,  it  was  pleaded  in 
abatement  that  the  plaintiff  carried  on  his  business  jointly 
with  A.  B.,  and  that  the  alleged  damage  accrued  to  A.  B. 
jointly  with  the  plaintiff.  On  general  demurrer  the 
plea  was  overruled,  but  a  question  was  raised  whether  a 
special  demurrer  might  not  have  been  interposed  to  the 
declaration  for  uniting;  damages  which  accrued  to  the 
plaintiff  with  damages  which  accrued  to  his  partner.  In 
other  words,  as  the  damage  to  the  business  was  jointly  to 
the  plaintiff  and  his  partners,  was  it  proper  for  plaintiff 

1  Cook  v.  Batchelor,  3  Bos.  <fe  Pul.  150;  see  note  to  Goldstein  v.  Foss,  2  Car.  & 
P.  252. 

3  Odiorne  v.  Bacon,  6  Cush.  185. 

3  Titus  v.  Follett,  2  Hill,  318 ;  and  see  Foster  v.  Lawson,  3  Bing.  4o2 ;  Le  Fanu  v. 
Malcomson,  1  CI.  '<fe  Fin.  N.  S.  63V;  Maitland  v.  Goldney,  2  East,  426;  Beardsley  r. 
Tappan,  1  Blatch,  C.  C.  Rep.  588.     See  Corporations. 

4  Haytliorn  v.  Lawson,  3  Car.  &  P.  196. 


§  186.]  CONCERTING    SPECIAL   CHARACTERS.  263 

to  allege  them  in  his  declaration  ?  It  was  assumed  that 
on  the  trial  the  jury  would  separate  the  damages ; 1  and 
in  other  cases,  one  of  several  partners  sustained  an  action 
for  libel  on  him  in  his  business.2  Where  the  language 
published  purported  to  give  information  as  to  the  credit 
and  standing  of  a  mercantile  firm,  and  charged  one  mem- 
ber with  dishonesty,  a  joint  action  by  all  the  partners  was 
sustained.8  Where  the  partners  unite  in  the  action,  or 
where  the  partner  whom  the  language  concerns  sues  alone, 
in  either  case  the  language  being  of  the  kind  called  action- 
able per  se  (§§  146,  147),  the  action  may  be  maintained 
without  any  allegation  or  proof  of  special  damage ; 4  but 
where  a  partner  whom  the  language  does  not  personally 
concern  sues  alone  for  language  personally  concerning  his 
partner,  in  that  case  the  action  cannot  be  maintained  unless 
there  be  an  allegation  and  proof  of  special  damage.  A 
recovery  by  the  partner  whom  the  language  personally 
concerns  would  not  bar  an  action  by  his  partner,  and 
probably  would  not  bar  a  separate  action  by  all  the  part- 
ners ;  nor  would  a  recovery  by  all  the  partners  be  a  bar 
to  a  separate  action  by  the  partner  whom  the  language 
personally  concerns.5 

§  186.  The  circumstance  of  one  being  heir  presumptive 
has  been  held  to  give  an  actionable  quality  to  language 
concerning  him  in  that  character.  StarMe  devotes  a  chap- 
ter to  a  partial  review  of  the  cases  in  which,  on  the  ground 
that  it  may  cause  his  disinherison,  it  has  been  held  action- 
able to  call  a  presumptive  heir  bastard,  and  he  concludes 


1  Robinson  v.  Marchant,  7  Q.  B.  (Adol.  &  Ell.  N.S.)  918. 

9  Fidler  v.  Delavan,  20  Wend.  57;  and  see  Solomon  v.  Medex,  1  Stark.  Cas.  191; 
Harrison  v.  Bevington,  8  Car.  &  P.  708,  and  Davis  ?>.  Ruff,  Cheves,  17.  This  last-named 
case  is  commented  on  in  Taylor  v.  Church,  1  E.  D.  Smith,  287. 

3  Taylor  v.  Church,  1  E.  D.  Smith,  279  ;  s.  c.  8  N.  Y.  452. 

4  Id.;  2  Saund.  PI.  &  Ev.  117  a.  117  b.  6  ed. ;  and  see  Foster  ».  Lawson,  3  Bing. 
452;  11  Moore,  360. 

6  Taylor  v.  Church,  1  E.  D.  Smith,  287. 


264  WHAT   LANGUAGE   IS    ACTIONABLE        [Cll.  VILT. 

that,  although  such  decisions  carry  the  doctrine  of  presump- 
tive loss  to  a  great  extent,  they  seem  to  be  warranted  by 
the  application  of  sound  and  general  principles.  He  does 
not  state  what  those  principles  are,  and  for  ourselves  we 
can  discover  no  principle  which  will  support  such  decis- 
ions. It  certainly  is  not  a  necessary  consequence  that  one 
should  disinherit  his  presumptive  heir  because  it  has  been 
said  of  him  that  he  is  a  bastard. 

S  187.  One  beino-  a  candidate  for  an  office  or  for  em- 
ployment  does  not  have  the  effect  to  make  language  con- 
cerning him  in  that  character  actionable  per  se,  otherwise 
than  as  it  would  be  actionable  per  se  if  it  concerned  him 
as  an  individual  merely.1  If  the  language  concerning  a 
candidate  for  office  or  employment  occasions  him  special 
damage,  as  the  failure  to  obtain  such  office  or  employment, 
it  will  be  actionable ;  thus  if  a  clergyman  is  to  be  pre- 
sented to  a  benefice,  and  one  to  defeat  him  says  to  the 
patron,  He  is  a  heretic,  or  a  bastard,  or  excommunicated, 
and  he  thereby  loses  his  presentment,  he  may  have  his 
action ; 2  and  where  a  lawyer  was  a  candidate  for  the  office 
of  steward  of  a  corporation,  and  the  electors  being  assem- 
bled to  make  an  election,  one  of  them  said  to  the  others, 
He  (said  candidate)  is  an  ignorant  man  and  not  fit  for  the 
place,  by  means  of  which  he  was  refused,  the  court  inclined 
to  the  opinion  that  the  words  were  actionable,  but  no 
judgment  was  given.3  The  fact  of  one  being  a  candidate 
for  an  office  or  for  employment,  in  many  instances  affords 
a  license  or  legal  excuse  for  publishing  language  concern- 
ing him  as  such  candidate,  for  which  publication  there 
would  be  no  legal  excuse  did  he  not  occupy  the  position 

1  Powers  v.  Dubois,  17  Wend.  63;  Prinn  v.  Howe,  1  Browu's  Cas.  Pari.  64;  Little- 
john  v.  Greely,  13  Abb.  P.  R.  41 ;  Hunt  v.  Bennett,  4  E.  D.  Smith,  647;  19  N.  Y.  173. 

s  Davis  v.  Gardiner,  4  Rep.  17  a. 

3  Sanderson  v.  Ruddes,  Mar.  146.  Words  which  will  cause  others  not  to  vote  for 
him  of  whom  they  were  spoken,  at  an  election  at  which  he  is  a  candidate,  are  action- 
able.    (Brewer  v.  Weakley,  2  Overt.  99.) 


§  188.]  CONCERNING    SPECIAL    CHARACTERS.  265 

of  such  a  candidate.  The  consideration  of  language  con- 
cerning  one  as  a  candidate  for  office  or  for  employment 
falls  more  appropriately  under  the  head  of  legal  excuses 
or  defenses,  and  it  will  be  there  discussed. 

8  188.  As  regards  the  kind  of  lano-uaa-e  concerning  one 
in  an  occupation  or  office  which  will  confer  a  right  of 
action,  it  has  been  said:  "Words  are  actionable  when 
spoken  of  one  in  an  office  of  profit,  which  may  probably 
occasion  the  loss  of  his  office,  or  where  spoken  of  persons 
touching  their  respective  professions,  trades,  and  business, 
and  do  or  may  probably  tend  to  their  damage.1  "  If  the 
words  be  of  probable  ill  consequence  to  a  person  in  a  trade 
or  profession  or  an  office ; " 2  Bayley,  B.,  objected  to  this 
rule  that  the  words  probably  and  probable  were  too  indefi- 
nite, unless  considered  equivalent  to  "  having  a  natural 
tendency  to,"  and  as  confined  within  the  limits  of  showing 
the  want  of  some  necessary  qualification  or  some  miscon- 
duct in  the  office,  it  went  beyond  what  the  authorities 
warranted.3  But,  "  How  is  a  natural  stronger  (more  defi- 
nite) than  &  probable  tendency  \  " 4  To  maintain  an  action 
for  words  spoken,  they  must  impute  some  matter  in  rela- 
tion to  the  party's  particular  trade  or  vocation,  and  which, 
if  true,  would  render  him  unworthy  of  employment.5 
"Every  authority  which  I  have  been  able  to  find  either 
shows  the  want  of  some  general  requisite,  as  honesty,  ca- 
pacity, fidelity,  <fec,  or  connects  the  imputation  with  the 
plaintiff's  office,  trade  or  business;"  6  or  his  office  of  trust 
and  place  of  honor,  provided  they  be  of  a  temporal  na- 

1  De  Grey,  Ch.  J.,  Onslow  v.  Home,  2  Wils.  186. 
9  Same  case,  as  reported  2  W.  Bl.  R.  753. 

3  Ltimby  v.  Allday,  1  Cr.  &  J.  301 ;  1  Tyrw.  217. 

4  Williams,  J.,  James  v.  Brook,  9  Q.  B.  7 ;  arid  see  Sibley  v.  Tomlins,  4  Tyrw.  90. 
'  6  Kinney  v.  Nash,  3  N.  Y.  177;  Fowles  v.  Bowen,  30  N  Y.  24. 

8  Bayley  B.,  Lumby  v.  Allday,  1  Cr.  &  J.  301 ;  1  Tyrw.  217;  approved  Ayre  v. 
Craven,  2  Adol.  &  El.  2;  2  Nev.  &  M.  220;  and  see  Jones  v.  Littler,  7  M.  &  W.  433; 
South.ee  v.  Denny,  1  Ex.  196;  Jame3  v.  Brooke,  9  Q.  B.  7. 

18 


266  WHAT   LANGUAGE   IS    ACTIONABLE        [Cll.  VIII. 

ture;1  and  "We  ought  not  to  extend  the  limits  of  actions 
of  this  nature  "beyond  those  laid  down  by  our  predeces- 
sors." 2  Although  every  lawful  lucrative  occupation  is,  as 
regards  the  actionable  quality  of  language,  governed  by 
the  same  general  principles,  yet  the  kind  of  occupation 
affects  the  application  of  the  principles,  and  the  identical 
language  which  may  be  not  actionable  as  concerning  one 
in  some  certain  occupation,  may  be  actionable  as  concern- 
ing one  in  some  other  occupation.  The  test  in  every  case 
by  which  to  decide  if  the  language  be  actionable,  meaning 
actionable  per  se,  is,  does  it  necessarily  occasion  damage ; 
and  because  the  language  which  may  necessarily  occasion 
damage  in  one  occupation  will  not  have  that  effect  in 
some  other,  it  happens  that  in  every  case  regard  must  be 
had  to  the  character  of  the  occupation.  Numerous  illus- 
trations of  this  are  to  be  found  in  the  subsequent  part  of 
this  chapter.  We  select  one  instance :  In  the  case  of  a 
merchant,  the  keeping  of  account  books  is  or  is  considered 
to  be  a  requisite  to  the  successful  prosecution  of  his  busi- 
ness, and  therefore  to  charge  one  who  is  a  merchant  with 
keeping  false  books  has  been  held  to  be  actionable,3  but 
the  like  charge  concerning  a  farmer  was  held  not  action- 
able,  because  the  keeping  of  books  was  not  considered 

1  How  v.  Prinn,  Holt,  652 ;  s.  c.  Prinn  v.  Howe,  1  Brown's  Cas.  ParL  64  ;  1  Starkie 
on  Slander,  124.  "  A  distinction  is  usually  taken  between  an  office  of  profit  and  an 
office  of  honor,  but  the  distinction  is  not  n  sound  one,  and  though  it  may  apply  to  an 
action  for  words,  it  does  not  extend  to  an  action  for  libel."  If  a  person  be  in  an  office ' 
of  profit,  it  is  libellous  to  impute  to  him  either  inability,  want  of  integrity,  or  anything 
which  amounts  to  it.  But  if  the  office  be  an  office  of  honor,  it  is  said  no  action  lies  ex- 
cept the  import  of  the  words  be  a  charge  of  dishonesty.  In  either  case,  charging  a  man 
with  inclinations  and  principles  which  show  him  unfit  for  an  office  of  trust  or  honor  is 
libellous,  without  charging  him  with  any  act.  Any  imputations  against  a  person  who 
is  in  the  enjoyment  of  an  office,  either  public  or  private,  of  honor,  profit,  or  trust, 
which  imports  a  charge  of  unfitness  to  administer  the  duty  of  the  office,  are  libels." 
(Holt  on  Libel,  208.)  Words  which  charge  a  breach  of  a  public  trust  are  actionable. 
See  Kinney  v.  Xash,  3  N.  Y.  178. 

2  Pollock,  Ch.  B.,  Gallwey  v.  Marshall,  9  Ex.  294. 

3  Backus  v.  Richardson,  5  Johns.  476;  and  the  like  charge  against  a  blacksmith 
held  actionable.  Burtch  v.  Xickerson,  17  Johns.  217;  and  seeCrawfoot  v.  Dale.  Vent. 
263  ;  and  Viner's  Abr.  Act.  for  Words,  U.  a.  2& 


§  189.]  CONCERNING   SPECIAL   CHARACTERS.  207 

requisite  to  the  conduct  of  his  business,  although  in  addi- 
tion to  his  business  of  farmer  he  sawed  logs  for  rewar<  I 
and  dealt  in  lumber.1 

§  189.  One  of  the  essential  elements  of  the  actionable 
quality  of  language  concerning  one  in  his  occupation  or 
office,  is  the  fact  that  the  person  whom  the  language  con- 
cerns is  in  such  occupation  or  office  (§  181)  ;  it  necessarily 
follows  that  to  render  language  concerning  one  in  his 
occupation  or  office  actionable  per  se,  the  person  whom  the 
language  concerns  must  follow  such  occupation  or  hold 
such  office  at  the  time  the  language  is  published.  No 
language  concerning  one  in  any  special  character,  published 
after  he  has  ceased  to  occupy  that  character,  can  be 
actionable  as  concerning  him  in  such  special  character. 
The  general  rule  is  that  in  an  action  for  language  concern- 
ing one  in  a  special  character,  it  must  be  shown  that  he 
maintained  that  special  character  at  the  time  the  language 
was  published.2  Where  the  plaintiff  had  been  com- 
missioner to  make  a  treaty  with  the  Indians,  and  after  his 
commission  had  terminated  the  defendant  charged   him 


1  Rathbun  »'.  Emigh,  6  Wend.  407.  Where  the  defendant  said  of  the  plaintiff,  a 
mercer,  "He  hath  deceived  in  a  reckoning,  and  his  debt-book  which  he  keepeth  is  a 
false  debt-book,"  judgment  went  against  the  plaintiff,  because  the  book  might  be  kept 
by  the  plaintiffs  servant,  and  he,  plaintiff,  not  have  knowledge  of  it.  (Brook's 
Case,  Godb.  231.)  In  Backus  v.  Richardson  (5  Johns.  476),  the  court  said  the  words 
"You  keep  false  books"  implied  knowledge  in  plaintiff;  and  in  Todd  v.  Hastings 
(Vent.  1 17),  it  was  held  that  to  charge  a  trader  with  keeping  "false  books"  would  be 
construed  to  mean  "  false  debt  books."  Keeping  books  of  account  is  necessary  in  this 
country,  where  credit  is  generally  given,  as  well  by  the  mechanic  as  by  the  merchant 
and  professional  man.  (Burtch  v.  Xickerson,  17  Johns.  217.)  Mechanics  "generallv 
sell  on  credit,  and  their  success  and  reputation  depend  upon  their  character  for  fair 
dealing."  (Rathbun  v.  Emigh,  6  Wend.  41  '7.)  Another  reason  why  a  charge  of  keep- 
ing false  books  of  account  was  held  actionable  was,  that  such  books,  if  generally 
reputed  correct,  were  receivable  as  evidence  of  their  contents.  (Crawfoot  v.  Dale 
Vent.  263.) 

2  Smayles  v.  Smith,  Browl.  1  ;  Reignald's  Case,  Cro.  Car.  563 ;  Bellamy  v.  Burch, 
16  M.  &  W.  690;  Allen  v.  Eillman,  12  Pick.  101  ;  Forward  v.  Adams,  7  Wend.  204  ; 
Oram  v.  Franklin,  5  Blackf.  42;  Harris  v.  Bailey,  8  N.  Ilamp.  216.  See  2  Vent.  366 
where  it  is  said,  "  Where  a  man  had  been  in  an  office  of  trust,  to  say  he  behaved  him- 
self corruptly  in  it,  as  it  imported  great  scandal,  so  it  might  prevent  his  coming  into 
that  or  the  like  office  again."     See  g  290,  post. 


268  WHAT   LANGUAGE   IS   ACTIOXABLE        [Cll.  VITI. 

orally  with  hiring  and  bribing  the  Indians  to  sign  such 
treaty,  held  that  no  action  could  be  maintained.1  Where 
plaintiff  was  twice  constable,  once  in  1843  and  again  in 
1846,  and  during  the  latter  period  one  said  of  him  orally 
that  while  constable  in  1843  he  had  made  a  false  return, 
held  that  the  words  would  not  support  an  action.2  If  a 
man  has  been  a  merchant  and  leaves  off  merchandising 
for  a  time,  and  another  calls  him  bankrupt,  an  action  lies ; 
for  though  he  does  not  use  the  trade  of  a  merchant  at  the 
time  of  the  speaking  the  words,  yet  he  remains  a  merchant, 
and  may  resume  the  trade  at  his  pleasure ; 3  but  where  the 
plaintiff  alleged  he  had  for  many  years  used  the  trade  of 
a  drover,  but  without  alleging  he  was  a  drover  at  the  time 
of  the  publication,  it  was  held  he  did  not  show  a  cause  of 
action.4  Whether  or  not  the  plaintiff  occupied  the  special 
character  alleged,  and  whether  or  not  be  continued  in  such 
special  character  until  the  time  of  the  publication  com- 
plained against,  are  questions  of  fact.  A  person  shown 
once  to  have  been  in  any  certain  office,  profession,  or  trade, 
is   presumed  to  continue  therein.5    The  decisions  which 


1  Forward  v.  Adams,  7  "Wend.  204. 

•  Edwards  v.  Howell,  10  Ired.  211 ;  but  it  was  said  plaintiff  might  have  recovered 
on  proof  of  special  damage. 

3  Gardner  v.  Hopwood,  Yelv.  159;  and  see  Vin.  Abr.  Act.  for  Words,  U.  a.  19. 
An  attorney  who  has  not  taken  out  his  annual  certificate,  although  he  is  by  statute 
disabled  from  recovering  his  fees,  nevertheless  continues  an  attorney,  and  may  main- 
tain an  action  for  language  concerning  him  as  an  attorney.  (Jones  v.  Stevens,  11 
Price,  235;  Pearce  v.  Whale,  5  B.  &  C.  38;  Morris  v.  Langdale,  2  Bos.  <fc  P.  2t>4.) 
See  §  183,  ante. 

4  Collis  v.  Malin,  Cro.  Car.  282;  Gray  v.  Metcalfe,  Yelv.  21. 

6  Tuthill  v.  Milton,  Yelv.  158;  Collis  v.  Maliu,  Cro.  Car.  282;  Jordan  v.  Lyater, 
Cro.  Eliz.  273  ;  Moore  v.  Syne,  2  Rolle  R.  84 ;  Dod  v.  Robinson,  All.  63  ;  Forward  v. 
Adams,  7  Wend.  204;  Bellamy  v.  Burch,  16  M.  &  W.  590;  Fry  v.  Bennett,  2S  X.  Y. 
S24;  but  see  M'Leod  v.  Murphy,  3  Car.  &  P.  311.  Where  a  plaintiff  avers  generally 
that  he  filled  any  office,  or  exercised  any  trade,  his  filling  such  office  or  being 
of  such  trade  is  sufficiently  proved  by  evidence  of  his  having  acted  in  such  office  or 
carried  on  such  trade.  And  in  the  case  of  all  peace  officers,  justices  of  the  peace, 
constables,  &c,  it  is  sufficient  to  prove  that  the}-  acted  in  those  characters  without 
proving  their  appointments.  (Berryman  v.  Wise,  4  T.  R.  366  ;  Gordon's  case.  Leach, 
581  ;  Rex  v.  Shelly,  Leach,  5S1.  n.) 


§    190.]  CONCERTTCXG    SPECIAL    CHARACTERS.  269 

are  sometimes  referred  to  as  exceptions  to  the  rule  that  the 
person  whom  the  language  concerns  must  maintain  his 
special  character  at  the  time  the  language  is  published, 
are  really  not  exceptions  to  that  rule,  they  are  cases  which 
follow  another  and  different  rule  because  comprehended  in 
a  different  class.  On  examination  they  will  be  found  to 
rano-e  themselves  under  the  division  relating:  to  lano-uao-e 
concerning  an  individual  as  such  ;  and  the  true  ground  on 
which  in  such  cases  the  actions  were  sustained,  was  of  the 
language  being  actionable  as  affecting  the  individual  as 
such,  without  regard  to  his  having  occupied  the  special 
character  to  which  the  language  refers.  Thus  where  one 
had  been  senator,  and  after  his  term  of  office  had  ceased 
it  was  published  of  hini  in  writing  that  he  had  been  guilty 
of  corrupt  conduct  in  his  office  of  senator,  the  action  was 
sustained ; 1  and  so  where  one  had  been  a  constable,  and 
after  he  quitted  that  office  it  was  said  of  him  that  while 
in  office  he  was  a  healer  of  felons,  or  of  one  that  when  in 
office  as  a  justice  he  was  a  bribing  justice.2 

§  190.  To  render  language  concerning  one  in  a  special 
character  or  relation  actionable,  "  it  must  touch  him "  in 
that  special  character  or  relation ;  for  unless  it  does,  it 
must  be  judged  in  regard  to  its  actionable  quality  by  the 
rules  which  apply  to  language  concerning  an  individual  as 
such.  That  the  language  "  must  touch  "  the  person  whom 
it  concerns  in  his  special  character,  means  only  that  it 
must  concern  him  in  such  special  character,  and  affect  him 
therein.  It  is  not  sufficient  that  the  language  disparages 
him  generally,  or  that  his  general  reputation  is  thereby 


1  Cramer  v.  Riggs,  17  Wend.  209;  and  see  7  Wend.  204;  Wilson  v.  Noonan,  23 
Wis.  231;  Littlejohn  v.  Greely,  13  Abb.  Pra.  R.  41;  Walden  v.  Mitchell,  2  Vent. 
266. 

2  Pridham  v.  Tucker,  Yelv.  153;  and  see  Ilerle  v.  Osgood,  1  Vent.  50.  To  say  of 
a  commissioner  appointed  to  take  testimony,  he  hath  taken  bribes.     (Moor  v.  ! 

Cro.   Jne.   65),  and  charging  an  officer  of  a  court  of  record  with  taking  bribes,  held 
actionable.     (Anon.  Dal.  43;  Lee  v.  Swan,  Yelv.  142.) 


270  WHAT   LANGUAGE   IS   ACTIONABLE        [Cll.  VIII. 

affected ;  it  must  be  such  as  if  true  would  disqualify  him 
or  render  him  less  fit  properly  to  fulfill  the  duties  incident 
to  the  special  character  he  has  assumed.  It  is  not  enough 
that  the  language  "tends  to  injure  the  person  in  his  office, 
profession,  or  trade,  it  must  he  spoken  (published)  of  him 
in  his  official  or  business  character."1  It  must  "touch 
him  in  his  office,  profession,  or  trade," 2  Thus,  saying  of 
a  justice  of  the  peace  "  there  is  a  combined  company  here 
to  cheat  strangers,  and  Squire  Van  Tassel  has  a  hand  in 
it.  I  don't  see  why  he  did  not  tell  me  the  execution  had 
not  been  returned  in  time,  so  that  I  could  sue  the  con- 
stable ; " 3  or,  "  Squire  Oakley  is  a  damned  rogue," 4  was 
held  to  impute  misconduct  as  a  man  and  not  as  a  magis- 
trate, and  not  to  be  actionable.  For  a  like  reason  it  was 
held   not   actionable   to   say  of  one   who   kept   a  public 

1  Van  Tassel  v.  Capron,  1  Denio,  250  ;  Sibley  v.  Tompkins,  4  Tyrw.  90 ;  Dolley  v. 
Roberts,  3  Bing.  N.  S.  835  ;  Ridway  v.  Gray,  31  Verm.  (2  Shaw)  292;  Buck  v.  Hersey, 
31  Maine  (1  Red.)  558.  It  seems,  however,  that  where  one  is  in  business,  words 
spoken  of  him  in  his  private  character  will  bear  an  action,  if  they  are  such  as  must 
necessarily  affect  him  in  his  business  ;  thus  to  say  of  a  brewer,  he  had  been  locked 
up  in  a  spongiDg-house  (a  private  jail,  kept  by  deputy-sheriffs  where  persons  arrested 
for  debt,  on  paj'ing  for  the  indulgence,  have  the  option  of  remaining  instead  of 
going  to  the  debtor's  prison),  was  held  actionable,  because  the  words  were  held 
necessarily  to  affect  his  credit  as  a  trader.  (Jones  v.  Littler,  7  M.  <fc  W.  423.)  And 
see  Bell  v.  Thatcher,  Freem.  277;  Fowles  v.  Bowen,  30  N.  Y.  23;  Starr  v.  Gardner, 
6  Up.  Can.  Q.  B.  R.  (0.  S.)  512.  So  in  Davies  v.  Ruff,  Cheves,  17,  it  is  said  that 
words  affecting  the  pecuniary  credit  of  a  merchant  need  not  be  averred  nor  proved 
to  have  been  used  in  relation  to  his  occupation  as  a  merchant,  for  in  their  nature  they 
strike  at  the  root  of  mercantile  character. 

2  Kinney  v.  Nash,  3  N.  Y.  177;  Van  Tassel  v.  Capron,  1  Denio,  250;  Comyn's 
Dig.  Act.  for  Defam.  D.  27.  Whether  words  were  spoken  of  a  man  in  a  certain 
capacity,  is  a  question  of  fact  for  the  jury.  (Skinner  v.  Grant,  12  Verm.  456; 
Sibley  v.  Tomlins,  4  Tyrw.  90;  Dojdey  v.  Roberts,  3  Bing.  N.  S.  835;  Tomlinsou  v. 
Brittlebank,  1  Har.  &  \V.  573.) 

3  Van  Tassel  v.  Capron,  1  Denio,  250. 

4  Oakley  v.  Farrington,  1  Johns.  Cas.  129  ;  and  held  not  actionable  to  say  of  a 
justice.  "He  is  a  logger-headed,  a  slouch-headed,  and  a  bursen-bellied  hound." 
(1  Keb.  629.)  Calling  one  who  is  a  cooper  varlet  and  knave  is  not  actionable — the 
words  do  not  touch  him  in  his  trade.  (Coles  v.  Kettle,  Cro.  Jac.  204.)  But  the 
words,  "  You  are  a  deceitful  rascal,  villain,  and  liar;  I  wonld  not  trust  you  with  an 
auctioneer's  license.  You  robbed  a  man  you  called  your  friend,  and  not  satisfied  witli 
£10,  you  robbed  him  of  £20  a  fortnight  ago,"  spokeu  of  an  auctioneer,  held  actionable. 
(Ramsdale  v.  Greenacre,  1  Fos.  &  F.  61.) 


§    190.]  CONCERNING    SPECIAL    CHARACTERS.  271 

garden,  "  He  is  a  desperate  man,  a  dangerous  man.  I  am 
afraid  to  go  to  his  house  alone ;  I  am  afraid  of  my  life ; "  * 
and  these  words  of  a  pork  butcher,  "  Who  stole  F.'s  pigs  ? 
You  did,  you  thief;  you  poisoned  them  with  mustard  and 
brimstone,"  were,  after  verdict,  held  not  to  have  any  nec- 
essary connection  with  his  trade,  and  were  not  calculated 
to  injure  him  in  it,  and  therefore  not  actionable.2  So 
these  words,  "  He  is  a  regular  prover  under  bankruptcies," 
published  of  a  livery-stable  keeper  held  not  to  affect  him 
in  his  business.3  The  words,  "He  has  defrauded  his 
creditors,  and  been  horse-whipped  off  the  course  at  D.," 
spoken  of  an  attorney  but  not  in  his  character  of  an 
attorney,  held  not  actionable.4  And  the  same  decision 
was  made  in  reference  to  these  words  spoken  of  an  attor- 
ney :  "  I  have  taken  out  a  judge's  order  to  tax  A.'s  bill,  I 
will  bring  him  to  book,  and  have  him  struck  off  the  roll.5 
I  will  take  him  to  Bow  Street  on  a  charge  of  forgery."  6 
And  saying  of  a  livery-stable  keeper,  "  You  are  a  regular 
prover  under  bankruptcy;  you  are  a  regular  bankrupt 
maker ;  if  it  was  not  for  some  of  your  neighbors  your 
shop  would  look  queer,"  was  held  not  to  be  a  charge  in 
the  way  of  his  trade  nor  actionable.7  Where  words  im- 
puting incontinency  and  not  in  themselves  actionable 
were  spoken  of  one  in  respect  of  his  situation  as  clerk  in 
a  gas  company,  held  that  not  imputing  any  misconduct  in 
his  capacity  of  clerk,  they  were  not  actionable.8     A  charge 


1  Ireland  v.  McGarrish,  1  Sandf.  155. 

2  Sibley  v.  Tomlins,  4  Tyrw.  90.  The  jury  found  that  the  words  were  not  intended 
to  impute  felony. 

3  Angle  v.  Alexander,  7  Bing.  123. 

1  Doyley  v.  Roberta,  3  Bing.  N.  S.  835. 

6  Phillips  v  Jansen,  2  Esp.  Cas.  624. 

'  Harrison  v.  King,  4  Price,  40  ;  7  Taunt.  431. 

7  Alexander  v.  Angle,  1  Cr.  &  J.  113:   1  Tyrw.  9. 

8  Luraby  v.  Allday,  1  Cr.  &  J.  301 ;  1  Tyrw.  217.  The  words  were,  "You  are  a 
fellow,  a  disgrace  to  the  town,  unfit  to  hold  your  situation  for  your  conduct  with 
whores." 


272  WHAT    LANGUAGE   IS    ACTIONABLE        [Ch.  YlLL. 

against  the  plaintiff,  laid  to  be  spoken  of  him  in  hi>  trade 
of  a  stayniaker,  of  criminal  intercourse  with  a  female 
employed  by  him  in  his  trade,  held  not  to  affect  him  in 
his  trade  and  not  actionable.1  And  so  it  was  held  that  a 
charge  of  adultery  against  a  physician  did  not  necessarily 
touch  him  in  his  profession,  and  was  not  actionable  with- 
out its  beins;  shown  that  the  charge  was  connected  with 
the  plaintiff 's  profession ; 2  and  the  same  was  held  of  these 
words  of  a  physician :  "  He  is  so  steady  drunk  he  cannot 
get  business  any  more ; 3  or,  he  is  a  two-penny  bleeder ; 4 
or,  he  gave  my  child  too  much  mercury;  or,  he  made  up 
the  medicines  wrong  through  jealousy,  because  I  would 
not  allow  him  to  use  his  own  judgment.5  Saying  of  a 
woman  who  gained  her  livelihood  by  teaching  girls  to 
dance,  "  She  is  as  much  a  man  as  I  am ;  she  got  I.  S.  with 
child ;  she  is  an  hermaphrodite,"  was  held  not  actionable, 
no  special  damage  being  properly  alleged,  and  because 
girls  are  taught  to  dance  as  frequently  by  men  as  by 
women.6  It  was  held  actionable  to  call  a  school-mistress 
a  dirty  slut ; 7  or  with  being  insane,8  or  to  charge  by 
writing  a  school-teacher  with  making  a  false  report  to  the 
school  visitors  and  with  general  untruthfulness,9  or  with 
want  of  chastity.10     It   was   held  actionable   to   say  of  a 

1  Brayne  v.  Cooper,  5  M.  &  W.  249. 

1  Ayre  v.  Craven,  2  Adol.  &  El.  2 ;  4  New  <t  M.  220.  In  Barrett  v.  Carpenter,  Nov, 
64,  it  was  held  not  actionable  per  se  to  charge  a  clergyman  with  adultery ;  but  that 
case,  it  was  said  in  Galwey  v.  Marshall,  9  Ex.  294,  has  been  overruled;  and  saying  of 
a  clergyman  that  he  had  two  wives  was  held  actionable.  (Nicholson  v.  Lynes,  Cro. 
Eliz.  94.)     See  §  195,  post. 

3  Anon.  1  Ham.  83,  note. 

*  Foster  v.  Small,  3  Whart.  138. 

6  Edsall  v.  Russell,  4  M.  <fc  G.  1090. 

6  Weatherhead  v.  Armitage,  2  Levinz,  233.  In  Malone  v.  Stewart,  15  Ohio,  319,  it 
was  held  actionable  to  call  a  married  woman  an  hermaphrodite. 

1  Wilson  v.  Ruuyon,  Wright,  651. 

8  Morgan  v.  Lingen,  8  Law  Times,  X.  S.  800.  See  ante,  note  10,  p.  248 ;  note  1, 
p.  249. 

9  Liudley  v.  Horton,  27  Conn.  5S. 

10  Bodwell  v.  Osgood,  3  Bick.  379. 


§    191.]  CONCERNING    SPECIAL    CHARACTERS.  2)  t 

shop-keeper,  lie  had  nothing  but  rotten  goods  in  his  shop ; l 
or  to  charge  in  writing  that  the  place  of  business  of  a 
trader  (a  coach-builder)  was  not  respectable ; 2  or,  that  a 
ship  of  which  the  plaintiff  was  owner  and  master,  and 
which  he  had  advertised  for  a  voyage  to  the  East  Indies, 
was  not  seaworthy,  and  that  Jews  had  bought  her  to  take 
out  convicts.3  Saying  of  an  innkeeper,  "  you  have  stolen 
goods  in  your  house  and  you  know  it,"  held  not  action- 
able.4 

§  191.  In  those  trades  or  professions  in  which,  ordi- 
narily, credit  is  essential  to  their  successful  prosecution, 
there  language  is  actionable  per  se,  which  imputes  to  one 
in  any  such  trade  or  profession,  a  want  of  credit  or  respon- 
sibility or  insolvency,  past,  present,  or  future ; 5  as,  to  say 
of  a  tradesman,  He  is  not  able  to  pay  his  debts ;  or,  He 
owes  more  than  he  is  worth ; 6  he  will  break  shortly.7  He 
is  a  pitiful  fellow  and  a  rogue ;  he  compounded  his  debts 


1  Bennett  v.  Wells,  12  Mod.  420. 

2  Barrett  v.  Long,  3  Ho.  Lords  Cas.  395. 

3  Ingram  v.  Lawson,  6  Bing.  N.  C.  212;  8  Sc.  7*75.  The  words  were  held  to  be 
more  than  a  libel  on  the  ship,  and  to  constitute  a  libel  on  the  plaintiff  in  his  trade,  for 
which  he  might  recover  without  proof  of  malice  or  special  damage. 

4  Patterson  v.  Collins,  11  Up.  Can.  Q.  B.  63.     See  ante,  note  6,  p.  236. 

6  Seycroft  v.  Dunker,  Cro.  Car.  317;  Harrison  v.  Thornborough,  10  Mod.  11; 
Southam  v.  Allen,  T.  Raym.  231;  Sewall  v.  Catlin,  3  Wend.  291 ;  Read  v.  Hudson,  1 
L'd  Raym.  610  ;  Ostrom  v.  Calkins,  5  Wend.  263 ;  Davis  v.  Lewis,  7  T.  R.  17 ;  Dobson 
v.  Thornistone,  3  Mod  112;  Chapman  v.  Lampbire,  3  Mod.  155,  Mott  v.  Comstock,  7 
Cow.  654;  Whitaker  v.  Bradley,  7  D.  &  R.  619;  s.  c,  Whittington  v.  Gladwin,  5  B. 
&  C.  180;  2  C.  &  P.  146;  Lewis  v.  Hawley,  2  Day,  495;  Auon.,  Lofft,  322;  Hull  v. 
Smith,  1  M.  &  S.  287;  Else  v.  Ferris,  Anthon,  23;  Brown  v.  Smith,  20  Eng.  L.  &  Eq. 
R.  243 ;  13  C.  B.  596;  22  Law  Jour.  R.  N.  S.  C.  P.  151 ;  17  Jur.  807 ;  1  Com.  Law 
Rep.  49 ;  Jones  v.  Littler,  7  M.  &  W.  423 ;  Carpenter  v.  Dennis,  3  Sandf.  305 ;  Phillips 
v.  Hoeffer,  1  Penn.  St.  Rep.  62;  Pretty  nian  v.  Shockley,  4  Harring.  112;  Griffiths  v. 
Lewis,  15  Law  Jour.  249,  Q.  B. 

8  Vin.  Abr.  Act.  for  Words,  U.  a.  11,  12,  13,  20,  21,  and  to  publish  in  writing  con- 
cerning one  engaged  in  business  in  which  credit  was  essential,  "  Had  to  hold  over  a 
few  days  for  the  accommodation  of  L.  (plaintiff)."  Lewis  v.  Chapman,  19  Barb.  252  ; 
s.  c.  16  N  Y.  369;  and  see  Robinson  v.  Marchant,  7  Q.  B.  918;  Marzetti  v.  Williams, 
1  B.  &  A.  415. 

7  Hill's  case,  Lat.  114;  Dobson  v.  Thornistone,  3  Mod. 'l  12. 


274  WHAT   LANGUAGE   IS   ACTIONABLE        [Cll.  VUL 

at  5s.  in  the  pound.1  He  is  indebted  to  me,  and  if  he 
does  not  come  and  make  terms  with  me,  I  will  make  a 
bankrupt  of  him  and  ruin  him.2  He  is  a  bankrupt,3  He 
was  a  bankrupt.4  He  is  a  bankrupt,  and  unable  to  pay 
his  just  debts.5  The  sheriff  will  sell  him  out  one  of  these 
days,  and  claims  against  him  not  sued  will  be  lost.6  He 
must  fail ;  his  time  is  come.7  He  is  not  worth  a  penny 
and  will  run  away.8  He  will  be  a  bankrupt.9  He  is  next 
door  to  breaking.10  He  is  broken  and  run  away,  and  will 
never  return.11     I  heard  he  was  run  away.12    I  have  heard 


1  Spoken  of  a  pawnbroker,  and  special  damage  alleged.  (Stanton  v.  Smith,  2  L'd 
Raym.  1480.)  This  case  was  questioned  3  Bing.  N.  C.  840,  but  sustained  Jones  v. 
Littler,  7  M.  &  W.  423. 

2  Brown  v.  Smith,  13  C.  B.  596;  1  Com.  Law  Rep.  49;  22  Law  Jour.  Rep.  5T.  S.  C. 
P.  151 ;  20  Eng.  Law  &  Eq.  R.  243. 

8  Spoken  of  a  grazier.  (Anon.,  1  Bulst.  40.)  Of  a  dyer.  (Squire  v.  Johns,  Cro. 
Jac.  558.)  Of  a  shoemaker,  who  bought  and  sold  leather.  (Stanley  v.  Osbaston,  Cro. 
Eliz.  268;  and  see  Vin.  Abr.  Act.  for  Words,  U.  a.  18,  19,  35,  36,  38,  I.  a.) 

4  Hull  v.  Smith,  1  M.  &  S.  287. 

6  Spoken  of  a  drover,  whose  business  was  to  purchase  droves  of  cattle  and  drive 
them  to  market  and  sell  them.  (Lewis  v.  Hawley,  2  Day,  495.)  An  innkeeper  is  a 
trader.  (Ombony  v.  Jones,  19  N.  Y.  241.)  The  words,  "You  have  been  a  pauper 
ever  since  you  have  lived  in  the  parish  ;  you  are  now  a  pauper.  I  have  paid  £20  a 
year  towards  your  maintenance ;  you  will  be  in  the  bankrupt  list  in  less  than  twelve 
months,"  spoken  of  an  innkeeper,  held  actionable.  (Whittington  v.  Gladwin,  5  B.  <fc 
C.  180 ;  2  Car.  &  P.  140 ;  s.  c,  Whitaker  v.  Bradley,  7  D.  <fc  R.  049.)  So  it  is  action- 
able to  say  of  an  innkeeper,  He  is  broke,  and  there  is  neither  entertainment  for  man 
nor  horse.     (Southam  v.  Allen,  T.  Raym.  231.) 

6  Spoken  of  a  farmer.     (Phillips  v.  Iloeffer,  1  Penn.  St.  Rep.  62.} 

7  Spoken  of  a  distiller,  the  course  of  whose  business  was  to  purchase  grain  on 
credit.     (Ostrom  v.  Calkins,  5  Wend.  263.)  » 

B  Anon.,  Lofft,  322.  He  is  about  to  run  away  and  defraud  his  creditors.  (Pretty- 
man  v.  Shockley,  4  Harring.  112.) 

9  In  three  days.  (Thompson  v.  Twenge,  2  Rolle  R.  423.)  Or  in  six  months.  (Else 
v.  Ferris,  Anthon  N".  P.  23.)  He  will  be  bankrupt,  without  saying  when,  said  not  to 
be  actionable.     (ATin.  Abr.  Act.  for  Words,  O.  a.) 

10  Spoken  of  a  laceman  (a  dealer  in  lace).     (Read  v.  Hudson,  1  L'd  Raym.  610.) 

11  Spoken  of  a  carpenter.  (Chapman  v.  Lamphire,  3  Mod.  155.)  And  spoken  of  a 
farmer.  (Dobson  v.  Thornistone,  3  Mod.  112.)  To  say  of  a  merchant,  he  is  broke,  is 
actionable.     (Leycroft  v.  Dunkin,  Cro.  Car.  31.) 

10  Spoken  of  a  tailor.  (Davis  v.  Lewis,  7  Term  R.  17.)  Spoken  of  a  carpenter, 
(3  Mod.  312.) 


§    191.]  CONCERNING    SPECIAL    CHARACTERS.  275 

of  no  failures,  but  understand  there  is  trouble  with  S.1 
Two  dyers  are  gone  off,  and  for  aught  I  know  II.  ^vill  be 
so  too,  within  this  time  twelve  months.2  H.  will  lose  his 
debt;  M.  (plaintiff)  is  unable  to  pay  it.3  He  came  a 
broken  merchant  from  Hamburgh.4  All  is  not  well  with 
V. ;  there  are  many  merchants  who  have  lately  failed,  and 
I  expect  no  otherwise  of  V.5  There  is  no  bottom  to  you. 
I  would  put  you  through,  but  you  won't  stand ;  you  will 
burst  or  fail  before  I  have  a  chance.6  Thou  art  a  beggarly 
fellow,  and  not  worth  a  groat.7  They  have  been  sued; 
report  says  J.  B.'s  wife  (J.  B.  being  one  of  the  plaintiffs  ) 
is  about  to  apply  for  a  divorce,  and  that  J.  B.  has  put  his 
property  out  of  his  hands ;  if  so,  their  store  will  be  closed 
soon.8  Where  the  defendant  said  of  plaintiff,  a  trades- 
man in  his  shop,  and  in  the  presence  of  his  customers, 
that  certain  wholesale  dealers  had  closed  their  accounts 
with  him  and  were  going  to  shut  him  up  (innuendo  that 
plaintiff  was  insolvent  or  likely  to  be  so) ;  held,  it  was  for 
the  jury  to  say  whether  the  words  had  the  meaning 
ascribed  to  them  in  the  declaration,  and  if  so,  they  were 
actionable.9  So  actionable  to  say  of  a  trader  that  his 
checks  were  dishonored.10     But  held  not  actionable  to  say 

1  Spoken  of  a  merchant.  (Sewell  v.  Catlin,  3  Wend.  291.)  To  say  of  a  banker,  he 
suspended  payment,  is  actionable.     {Dictum  in  Forster  v.  Lawson,  3  Bing.  432.) 

2  Harrison  v.  Thornborough,  10  Mod.  11. 

3  Spoken  of  a  merchant.  (Mott  v.  Comstock,  1  Cow.  G54.)  It  was  held  not 
actionable  to  say  to  a  creditor  of  a  merchant  (the  plaintiff),  Yon  were  best  to  call 
for  it  (your  money)  in,  and  take  heed  how  you  trust  him.  (Vin.  Abr.  Act.  for 
Words,  U.  a.  11.) 

*  Seycroft  v.  Dunker,  Cro.  Car.  31 Y. 
6  Vivian's  Case,  3  Salk.  326. 

6  Spoken  of  one  engaged  in  buying  and  selling  woodenware.  (Carpenter  v.  Dennis, 
3  Sandf.  305.) 

''  Simpson  v.  Barlow,  12  Mod.  591. 

"  Beardsk-y  v.  Tappan,  1  Blatch.  Cir.  C't  R.  588. 

9  Gostling  v.  Brooks,  2  Fos.  &  F.  76. 

10  Rolin  v.  Steward,  14  C.  B.  595 ;  and  see  ante  in  note  p.  58.  Words  in  relation 
to  the  credit  of  a  shareholder  in  the  joint-stock  of  a  boat,  held  actionable,  special 
damage  being  shown,  and  there  being  a  colloquium  respecting  plaintiff  as  such  stock- 
holder, and  that  it  was  a  business  requiring  credit.  (Turner  v.  Foxall,  2  Cr.  C.  C. 
324.) 


276  WHAT   LANGUAGE   IS   ACTIONABLE        [Ch.  Ylll. 

of  traders,   "look   out  sharp  to  get  your  bills  met  by 
them." x 

§  192.  Language  of  one  in  his  trade  or  profession  is 
actionable  per  se  when  it  imputes  to  him  fraud,  want 
of  integrity,  or  misconduct  in  the  line  of  the  business 
or  profession  "whereby  he  gains  his  bread."2  Thus 
it  was  held  actionable  to  say  of  a  weaver,  He  is  a  rogue 
and  villain,  and  taketh  the  goods  of  his  customers  and 
pawneth  them,  and  he  is  not  a  man  to  be  trusted ; 3  of  an 
auctioneer  and  appraiser,  He  is  a  damned  rascal,  and  has 
cheated  me  out  of  £100  on  the  valuation;4  of  a  trader, 
He  was  guilty  of  dishonestly  using  old  materials  instead 
of  new  in  doing  a  certain  piece  of  work ; 5  of  a  corn-factor, 
You  are  a  rogue  and  a  swindling  rascal ;  you  delivered  me 
one  hundred  bushels  of  oats  worse  by  six  pence  a  bushel 
than  I  bargained  for ; 6  of  a  limeburner,  He  is  a  cheating 
knave ; 7  of  a  bailiff,  You  did  cozen  your  master  of  a 
bushel  of  barley,  or,  he  hath  deceived  his  master  by 
buying  and  selling;8   of  a  butcher,  That  he  used  false 

1  Dailies  v.  Hartley,  3  Ex.  200. 

a  Baboneau  v.  Farrell,  15  C.  B.  360;  Bryant  v.  Loxton,  11  Moore,  344;  Davis  v. 
Davis,  1  Nott  &  McCord,  290;  Chipman  v.  Cook,  2  Tyler,  456 ;  Rush  v.  Cavenaugh,  2 
Barr,  187;  Brown  v.  Mims,  2  Rep.  Con.  C't,  235:  Foot  v.  Brown,  8  Johns.  64;  Riggs 
v.  Deniston,  3  Johns.  Cas.  198;  Thomas  v.  Jackson,  3  Bing.  104  ;  10  Moore,  425; 
Odiorne  v.  Bacon,  6  Cush.  185 ;  Gay  v.  Horner,  13  Pick.  535 ;  Ludwell  v.  Hole,  2  L'd 
Raym.  1417;  Davis  v.  Miller,  2  Strange,  1169  ;  Obaugh  v.  Finn.  4  Pike,  110;  Boydell 
v.  Jones,  4  M.  &  W.  446  ;  7  Dowl.  (P.  C.)  210;  Sempsey  v.  Levy,  2  Jur.  770  ;  Vin. 
Abr.  Act.  for  Words,  IT.  a.  25,  26.  "Any  charge  of  dishonesty  against  an  individual 
in  connection  with  his  business,  whereby  his  character  in  such  business  may  be 
injuriously  affected,  is  actionable."  (Fowles  v.  Bowen,  30  N.  Y.  24.)  "Thou  hast 
received  money  of  the  king  to  buy  new  saddles,  and  hast  cozened  the  king  and 
bought  old  saddles,"  actionable.    (Greenfield's  Case,  Mar.  82  ;  1  Vin.  Abr.  465,  pi.  19.) 

3  Vin.  Abr.  Act.  for  Words,  U.  a.  4. 

4  Bryant  e.  Loxton,  11  Moore,  344. 

6  Baboneau  v.  Farrell,  1  Jur.  X.  S.  114;  15  C.  B.  360;  24  Law  Jour.  R.  N.  S.  9 
C.  P. ;  28  Eng.  Law  &  Eq.  R.  339. 

6  Thomas  v.  Jackson,  3  Bing.  104;  10  Moore,  425  ;  and  to  charge  a  merchant  with 
being  a  swindler  is  actionable.  (Herr  v.  Bamburg,  10  How.  Pra.  R.  128.)  Notes  3, 
4,  p.  247,  ante. 

7  Terry  v.  Hooper,  Raym.  87;  Lev.  115. 

8  Vin.  Abr.  Act.  for  Words,  U.  a.  5,  and  note  7,  p.  225,  ante. 


§    192.]  CONCERNING    SPECIAL    CHARACTERS.  277 

weights ;  *  of  a  jeweler,  He  is  a  cozening  knave  in  selling 
me  a  sapphire  for  a  diamond ; 2  of  a  goldsmith,  He  sold  me 
a  chain  of  copper  for  gold;  of  one.  who  sold  chamois  skins, 
He  will  cozen  you  and  sell  jovl  lamb  skins  instead  of 
chamois  skins;  of  a  brewer,  that  he  makes  or  sells  un- 
wholesome beer;  of  a  tradesman,  that  he  adulterates  the 
article  in  which  he  deals ;  of  one  who  took  children  to 
board,  that  he  starved  a  child  entrusted  to  his  care ; 3  of 
a  shipmaster,  "  he  sold  the  consignment  of  the  ship  Rising 
Sun,  and  pocketed  the  money." 4  Both  the  plaintiff  and 
defendant  carried  on  the  business  of  tailors.  Plaintiff  in 
company  with  A.  went  to  defendant's  store  to  purchase 
material  with  which  to  make  trowsers  for  A.  De- 
fendant said  to  A.,  don't  have  anything  to  do  with  that 
man  (plaintiff),  he  will  rob  you,  he  is  a  rogue.  De- 
fendant also  asked  A.  to  allow  him  (defendant)  to  make 
the  trowsers.  On  the  trial,  the  judge  directed  the  jury 
that  the  words  were  actionable  if  spoken  of  the  plaintiff 
in  the  way  of  his  trade,  and  the  jury  having  found  for  the 
plaintiff,  the  verdict  was  sustained  in  banc.5  And  action- 
able to  charge  the  agent  of  a  stage  company,  that  he 
(plaintiff)  and  B.,  his  sub-agent,  had  altered  way-bills 
and  books  to  screen  the  plaintiff  (innuendo  charging  for- 
gery), and  that  plaintiff  and  B.  were  together  to  cheat  the 
company,  and  they  would  cheat  them  out  of  more  than 

1  Griffiths  v.  Lewis,  15  Law  Jour.  249,  Q.  B. ;  and  see  Prior  v.  "Wilson,  1  C.  B. 
N.  S.  95.  The  way  in  which  Messrs.  P.  (the  plaintiffs)  do  tilings  at  Guildford — 
inserting  the  wedge — innuendo  inserting  a  wedge  to  falsify  the  weight. 

2  Vin.  Abr.  Act.  for  Words,  I.  a.  9,  and  several  cases  there  referred  to. 

3  Vin.  Abr.  Act.  for  Words,  U.  a.  27,  30,  28,  31,  29;  Freem.  25.  Charging  a 
brewer  with  filthy  and  disgusting  practices  in  preparing  his  malt,  is  actionable. 
(White  v.  Delaran,  17  Wend.  49;  Ryckinan  v.  Delavan,  25  Wend.  186.)  See  Wood 
v.Brown,  1  Marsh.  522;  6  Taunt.  169.  In  that  case,  a  declaration  which  alleged 
that  defendant  published  of  plaintiff,  a  brewer,  that  his  beer  was  of  a  bad  quality  and 
sold  by  deficient  measure,  was  held  bad  on  general  demurrer,  because  the  words  were 
not  set  out  in  hoec  verba,  but  it  was  merely  alleged  that  the  defendant  published  words 
purporting  that  plaintiff,  <fec. 

4  Orr  i'.  Skofield,  56  Maine,  483. 

6  Sloman  v.  Chisholm,  22  Up.  Can.  Q.  B.  20. 


278  WHAT   LANGUAGE   IS   ACTIONABLE        [Cll.  YlU. 

the  company  can  make.1  Actionable  to  charge  by  writing 
a  steamboat  agent  with  being  an  impertinent  person  and 
withholding  newspapers-  entrusted  to  him  for  the  de- 
fendants.2 And  it  was  held  actionable  to  publish  orally 
of  a  land  surveyor,  who  surveyed  by  mathematics,  as  dis- 
tinguished from  one  who  measured  with  a  pole.  He  is  a 
cozening  and  shifting  and  a  cheating  knave ;  and  it  was 
said  that  the  same  words  of  a  shoemaker,  a  butcher,  or  a 
baker,  would  not  be  actionable,  because  the  goodness  or 
deceit  of  their  wares  may  be  discerned  by  the  eye,  but 
deceit  in  land  measuring  could  be  discovered  only  by 
persons  skilled  in  the  art ; 3  but  not  actionable  to  say  of  a 
workman,  He  has  received  forty  days'  wages  for  work 
that  might  have  been  done  in  ten  days,  and  is  a  rogue  for 
his  pains ; 4  nor  to  say  of  a  smith,  Thou  art  a  cozening 
rogue,  and  in  one  tire  of  wheels  which  thou  didst  send  to 
J.  S.,  thou  didst  cozen  him  of  a  noble;  for  the  words 
import  he  cozened  in  the  price  only,  and  not  in  the  ill- 
making  of  the  wheels.  And  for  saying  of  men  in  trade 
who  sell  things  that  they  cozen  in  the  price,  is  no  dis- 
grace, for  every  trader  cozens  in  the  price  when  he  sells 
for  more  than  the  thing  is  worth.5  Actionable  to  publish 
orally  of  a  merchant's  clerk,  That  he  (plaintiff)  had  be- 
come such  a  notorious  liar  that  he  (defendant)  could 
place  no  confidence  in  him ;  that  he  had  strong  reason  to 
doubt  his  honesty,  and  had  written  S.  to  employ  an  officer 
to  watch  him.6    Actionable  to  publish  orally  of  a  merchant 

1  Gay  v.  Homer,  13  Pick.  535. 

2  Keernle  v.  Sass,  12  Miss.  499.  The  language  being  published  in  writing  was 
actionable  as  concerning  the  plaintiff  as  an  individual  merely. 

3  Blunclen  v.  Eustace,  Cro.  Jac.  504;  London  v.  Eastgate,  2  Rolle  R.  72. 

4  Lancaster  v.  French,  2  Stra.  797. 

5  Vin.  Abr.  Act.  for  Words,  S.  a.  24.  Thou  didst  cozen  a  woman  of  her  goods, 
held  not  actionable.  (Engurst  v.  Browne,  Cro.  Eliz.  99.)  And  held  not  actionable 
to  say  of  an  innkeeper,  He  is  a  caterpillar,  and  lives  by  robbing  his  guests.  Robbing 
not  construed  feloniously.    (Vin.  Abr.  Act.  for  Words,  IT.  a.  84.)    Ante  $  144.  subd.  z. 

6  Fowles  v.  Bowen,  30  N.  Y.  20 ;  and  see  Brown  v.  Orvis,  6  How.  Pra.  R.  378. 
Where  the  words  affect  one  as  merchant's  clerk,  special  damage  need  not  be  alleged. 
(Butler  v.  Howes,  7  Cal.  87.) 


§    102.]  CONCERNING    SPECIAL    CHARACTERS.  279 

that  lie  is  a  villain,  a  rascal,  and  a  cheater.1  And  the  fol- 
lowing words  spoken  of  the  plaintiff  as  clerk  of  the  firm 
of  defendant  and  his  partner,  "Your  man  (plaintiff)  is 
plotting  to  blow  me  (defendant)  and  the  concern  (said 
firm)  up,"  were  held  actionable.2  So  it  has  been  held  ac- 
tionable to  publish  orally  of  an  attorney,  He  is  a  forging 
rogue,3  a  cheat,4  a  damned  rascal ; 5  he  will  play  on  both 
sides  or  he  deals  on  both  sides,6  a  bribing  knave,  and  has 
taken  twenty  pounds  of  you  to  cozen  me ; 7  he  is  not  a 
man  of  integrity,  and  is  not  to  be  trusted ;  he  will  take  a 
fee  on  both  sides ; s  he  is  a  cheater,  I  will  have  him  barred 
of  his  practice ; 9  he  deserves  to  be  struck  off  the  roll ; 10  he 
is  a  false  knave,  a  cozening  knave,  and  has  gotten  all  that 
he  has  by  cozenage ;  he  has  cozened  all  those  that  have 
dealt  with  him ;  he  arresteth  without  taking  out  writs ;  he 
is  a  knave  in  his  practice  f1  he  offered  himself  as  a  witness 
to  divulge  the  secrets  of  his  clients ; 12  he  is  a  roo-ue  for 
taking  your  money,  and  has  done  nothing  for  it ;  he  has 
not  entered  an  appearance  for  you ;  he  is  no  attorney  at 
law,  he  don't  care  to  appear  before  a  judge ;  what  signifies 
going  to  him,  he  is  only  an  attorney's  clerk  and  a  rogue, 
he  is  no  attorney.13  Is  M.  your  attorney  ?  *  *  He  will 
overthrow  your  cause.14  I  marvel  you  will  employ  such  a 
knave  as  Nicholls,  you  will  have  but  disgrace  by  it ;  he  is 


I  Xelson  v.  Borchenius,  52  111.  236. 
s  Ware  «.  Clownoy,  24  Ala.  707. 

3  Auon.,  1  Comyn  R.  262. 

4  Rush  v.  Caranaugh,  2  Barr,  187. 

6  Brown  v.  Minis,  2  Rep.  Con.  C't,  235. 

8  Brown  v.  Hook,  Browl.  5;  Vin.  Abr.  Act.  for  Words,  S.  a.  2,  4  ;  Shire   v.  King, 
Yelv.  32;  s.  c.  King  v.  Shore,  Cro.  Eliz.  914. 

7  Yardley  v.  Ellis,  Hobart,  8,  9  ;  1  Rolle  R.  53. 
'  i  liipman  v.  Cook,  2  Tyler,  456. 

"Taylor  v.  Starkey,  Cro.  Car.  192. 

10  Dictum,  Phillips  v.  Jansen,  2  Esp.  624. 

II  Jenkins  v.  Smith,  Cro.  Jac.  586 ;  Bell  v.  Thatcher,  Freeman,  277. 
"Riggs  v.  Denniston,  3  Johns.  Cas.  198. 

13  Eardwick  v.  Chandler,  2  Str.  1138. 

14  Martyn  v.  Burling*,  Cro.  Eliz.  589;  Golds.  128. 


280  WHAT   LANGUAGE   IS   ACTIONABLE        [Cll.  YIII. 

a  proclaimed  knave;1  lie  is  the  falsest  knave  in  Eng- 
land ; 2  lie  is  a  base  rogue,  and  maintains  his  family  by 
his  knavery;3  he  is  an  extortioner,  and  cozened  A.  in  a 
bill  of  costs ; 4  he  keepeth  many  markets  and  stirreth  up 
men  to  suits,  and  promises  if  he  do  not  recover  in  their 
cause  he  will  take  no  charges,  and  he  once  promised  me 
that  if  he  did  not  recover  in  a  cause  he  would  take  no 
charges  of  me,  yet  he  afterwards  took  charges  of  me ; 5  he 
deserves  to  have  his  ears  nailed  to  the  pillory.6  Thou  art 
a  paltry  fellow ;  thy  credit  is  fallen,  for  thou  dealest  on 
both  sides,  and  dost  deceive  many  that  trust  thee.7  He 
suppressed  a  will ; 8  he  is  a  cozener,  and  hath  cozened  me 
of  twenty  shillings.9  He  is  a  cozener,  and  cozened  his 
clients,  and  for  that  cause  was  discharged  the  court.10  He 
is  a  base,  cheating,  cozening  knave,  and  hath  cheated  me 
as  never  any  man  was  cheated.11  He  took  corruptly  five 
marks  of  B.  T.,  being  against  his  own  client,  for  putting 
off  an  assize  against  him.12  Thou  art  a  common  barrator, 
a  Judas,  a  promoter.13  He  sets  people  together  by  the 
ears,  and  we  shall  have  him  indicted  for  a  common  bar- 
rator.14 You  are  a  knave;  you  were  attorney  for  my 
mother  against  my  husband,  and  set  her  on  to  sue  him,  and 
made  him  spend  £1,000,  and  such  knaves  as  you  are  have 
made  my  husband  spend  almost  all   his  estate.15    And 


1  Webb  v.  Nieholls,  Cro.  Car.  459. 

2  Anon.,  Mo.  61 ;  Dal.  63. 

3  Shaw  v.  Wakeman,  Vin.  Abr.  Act.  for  Words,  S.  a.  2. 

4  Stanley  v.  Boswel,  Cro.  Eliz.  603. 

5  Smith  v.  Andrews,  Sty.  183. 

6  Jenkinson  v.  Wray,  Mo.  41. 

7  Shire  v.  King,  Yelv.  32;  s.  c,  King  v.  Shore,  Cro.  Eliz.  914. 

8  Godfrey  v.  Owen,  Palm.  21. 

9  Litman  v.  West,  Het.  123. 

10  Mead  v.  Perkins,  Cro.  Car.  261. 

11  Jeffryes  v.  Payhem,  Cro.  Car.  510. 

12  Smayles  v.  Smith,  Browl.  1.   ■ 

13  Taylor  v.  Starkey,  Cro.  Car.  192. 

14  Annison  v.  Bl  -field,  Carth.  848. 

15  Hilton  v.  Playters,  All.  13. 


§  193.]  CONCEENPNG   SPECIAL    CIIAEACTEES.  281 

actionable  to  say  of  a  counsellor,  He  will  deceive  you ;  he 
revealed  the  secrets  of  my  cause.1  It  is  actionable  to 
publish  in  writing  of  an  attorney  employed  to  defend 
a  prisoner,  that  on  the  trial  he  sent  important  witnesses 
away  without  the  knowledge  of  his  client  or  of  counsel ; 2 
or  that  he  has  been  reprimanded  for  sharp  practice.3  "  I 
was  so  incensed  with  that  girl  (plaintiff)  for  coming  to 
hire  with  me,  after  having  had  a  miscarriage  at  Mrs.  B.'s 
house,  and  she  afterwards  to  give  the  girl  a  good  dis- 
charge." These  words  spoken  of  a  domestic  servant,  held 
actionable  per  se.4 

§  193.  Language  of  one  in  a  business  or  profession 
which  imputes  to  him  ignorance  generally  in  his  business 
or  profession,  or  such  ignorance  or  other  incapacity  as  un- 
fits him  for  its  proper  exercise,  is  actionable ; 5  as  to  say  of 
a  physician  or  an  apothecary,  "  It  is  a  world  of  blood  he 
has  to  answer  for  in  this  town  through  his  ignorance ;  he 
did  kill  a  woman  and  two  children.  He  was  the  death  of 
J.  P. ;  he  killed  his  patient  with  physic ; 6  or,  Dr.  A.  killed 
my  children ;  he  gave  them  teaspoon  doses  of  calomel,  and 
it  killed  them.  .  .  .  They  died  right  off  the  same  day ; T 
or,  He  has  killed  the  child  by  giving  it  too  much  calomel ; 8 
or,  He  has  killed  six  children  in  one  year ; 9  or,  He  is  a 

1  Snag  v.  Gray,  March's  Slan.  63. 

2  Sanford  v.  Bennett,  24  N.  Y.  20. 

3  Boydell  v.  Jones,  4  M.  &  W.  446.  Held  not  actionable  to  say  orally  of  an 
attorney,  he  is  a  paltry  lawyer  (Rich  v.  Holt,  Cro.  Jac.  267);  but  actionable  to  say 
orally,  He  is  a  pett3"-fogging,  blood-siickiDg  attorney.  (Armstrong  v.  Jordan,  Car- 
lisle Assizes,  1826.) 

4  Connors  v.  Justice,  13  Ir.  C.  L.  R.  451. 

6  Jones  v.  Powell,  1  Mad.  272;  Peard  v.  Jones,  Cro.  Car.  382;  Camp  v.  Martin, 
23  Conn.  86;  Day  v.  Buller,  3  Wils.  59;  Garr  v.  Selden,  6  Barb.  416. 

8  Tutty  v.  Alewin,  11  Mod.  221,  and  see  note  1,  p.  224,  ante. 

7  Secor  v.  Harris,  18  Barb.  425. 

*  Johnson  v.  Robertson,  8  Porter,  486 ;  see  dictum  March  v.  Davison,  8  Paige,  580. 
To  charge  a  physician  with  having  killed  a  patient  with  physic,  held  not  actionable. 
(Poe  v.  Mondford,  Cro.  Eliz.  620.) 

9  Carroll  v.  White,  33  Barb.  615. 

19 


282  WHAT    LANGUAGE   IS    ACTIONABLE        [Ch.  VIII 

drunken  fool  and  an  ass,  he  never  was  a  scholar ; 1  or,  I 
wonder  you  had  him  to  attend  you ;  do  you  know  him  ? 
He  is  not  an  apothecary ;  he  has  not  passed  any  examina- 
tion ;  he  is  a  had  character,  none  of  the  medical  men  here 
will  meet  him ;  several  have  died  that  he  has  attended, 
and  there  have  been  inquests  held  upon  them ; 2  or,  He 
killed  my  child,  it  was  the  saline  injection  that  did  it;3 
or,  He  is  an  empirick  and  a  mountebank ; 4  or  a  quack ; 5 
or,  He  is  a  quack,  and  if  he  shows  you  a  diploma  it  is  a 
forgery ; 6    or,  His  treatment  of  a  patient  was  rascally ; 7 
and  so  it  has  been  held  actionable  to  say  of  a  midwife, 
Many  have  perished  for  want  of  her  skill  (i.  e.  for  her 
want  of  skill).8     She  is  an  ignorant  woman,  and  of  small 
practice,  and  very  unfortunate  in  her  way ;  there  are  few  she 
goes  to  but  lie  desperately  ill,  or  die  under  her  hands.9 
She  is  no  midwife  but  a  nurse,  and  if  I  had  not  pulled  her 
from  Mrs.  J.  S.  she  had  killed  her  and  her  child.10     She 
lays  no  woman,  but  Dr.  Chamberlayn  or  his  lady  does  her 
work.11     And  it  has  been  held  actionable  to  say  of  a  school- 
master, Put  not  your  son  to  him,  for  he  will  come  away  as 
very  a  dunce  as  he  went.12     He  has  no  knowledge  in  gram- 
mar or  in  the  Latin  tongue,  nor  knows  how  to  educate  his 


J  Cawdrey  v.  Tetley,  Godb.  441. 

a  Southee  v.  Denny,  1  Ex.  196  ;  17  Law  Jour.  R.  151,  Ex.  Alleging  that  a  physi- 
cian is  not  entitled  to  practice  as  not  being  duly  licensed,  may  be  actionable.  See 
Collins  v.  Carnegie,  3  Nev.  &  M.  V03 ;  1  Ad.  &  El.  695. 

8  The  words  impute  manslaughter.     (Edsall  v.  Russell,  4  M.  <fc  G.  1090.) 

4  Vin.  Abr.  Act.  for  Words,  S.  a.  12.  Publishing  in  writing  of  a  barrister  that  he 
was  a  quack  lawyer  and  a  mountebank  and  an  imposter,  is  actionable.  (Wakley  v. 
Healey,  7  C.  B.  591.) 

6  Pickford  v.  Gutch,  Dorchester  Assizes,  1787.     White  v.  Carroll,  42  BT.  Y.  161. 

6  Moises  v.  Thornton,  8  Term  R.  303. 

1  Camp  v.  Martin,  23  Conn.  86. 

"  Flower's  Case,  Cro.  Car.  211. 

9  Wharton  v.  Brook,  Vent.  21 ;  Wharton  v.  Clover,  2  Keb.  489. 

10  Whitehead  v.  Fownes,  Freem.  277. 
JI  Gyles  v.  Bishop,  Freem.  278. 

u  Hot.  71. 


§  104.]  CONCERNING     SPECIAL     CHARACTERS.  283 

scholars  in  the  Latin  tongue,  with  an  allegation  of  loss  of 
scholars.1  So  it  has  been  held  actionable  to  say  of  an  at- 
torney, He  hath  no  more  law  than  Mr.  C.'s  bull,  or  than  a 
goose ; 2  he  cannot  read  a  declaration ; 8  what,  does  he  pre- 
tend to  be  a  lawyer  ?  he  is  no  more  a  lawyer  than  the 
devil ; 4  or  of  a  barrister,  He  is  a  dunce,  and  will  get  little 
by  law,  he  was  never  but  accounted  a  dunce ; 5  or  of  a 
shoemaker,  that  he  is  a  cobbler;6  or  of  a  watchmaker, 
that  he  knows  not  how  to  make  a  good  watch.7  Action- 
able to  say  of  a  mason,  "  He  is  no  mechanic,  he  cannot 
make  a  good  wall,  or  do  a  good  job  of  plastering,  he  is  no 
workman,  he  is  a  botch ; "  and  actionable  to  write  of  an 
optician,  he  is  "  a  licensed  hawker  and  a  quack  in  spectacle 
secrets." 9 

§  194.  It  is  not  actionable  to  charge  one  in  a  business 
or  profession  with  want  of  skill  or  ignorance  in  a  particu- 
lar transaction.10  Thus  it  was  held  not  to  be  actionable  to 
say  of  an  attorney  in  a  particular  suit,  "  He  knows  nothing 
about  the  suit ;  he  will  lead  you  on  until  he  has  undone 
you.11  It  is  said,  however,  that  it  is  actionable  to  charge 
ignorance  or  unskillfulness  if  it  amounts  to  gross  ignorance 


I  London  v.  Eastgate,  2  Rolle's  R.  72. 
e  Baker  v.  Morfue,  Sid.  32T. 

3  Powell  v.  Jones,  2  Keb.  710 ;  1  Mod.  272.  It  implies  ignorance,  not  a  defect  of 
sight. 

4  Day  v.  Buller,  3  Wils.  59. 

5  Peard  v.  Jones,  Cro.  Car.  382. 

6  1  Mod.  19;  Vin.  Abr.  Act.  for  Words,  IT.  a.  1G. 

7  Redman  v.  Pyno,  1  Mod.  19;  but  to  say  of  a  watchmaker,  he  is  a  bungler,  and 
knows  not  how  to  make  a  good  piece  of  work,  would  be  actionable.  {Id.)  Where 
A.,  the  author  of  a  work,  sold  the  copyright  to  the  defendant,  who  afterwards  pub- 
lished a  new  edition  as  edited  by  A.,  containing  mistakes  and  errors,  held,  if  this  was 
calculated  to  injure  A.'s  reputation  as  an  author,  he  might  maintain  an  action.  (Arch- 
bold  v.  Sweet,  5  C.  <fc  P.  219;  1  M.  &  Rob.  162.) 

■  Fitzgerald  v.  Redfield,  51  Barb.  484;  36  How.  Pr.  R.  97. 

•  Keyzor  v.  Newcomb,  1  Fost.  &  F.  559. 

10  Garr  v.  Selden,  6  Barb.  416;  Camp  v.  Martin,  23  Conn.  86;  Southee  v.  Denny, 
1  Ex.  196. 

II  Foot  v.  Brown,  8  Johns.  64. 


284  WHAT     LANGUAGE    IS    ACTIONABLE       [Ch.  VIII. 

or  unskillfulness.1  This  seems  only  another  mode  of  im- 
puting such  ignorance  as  unfits  the  person  for  the  proper 
exercise  of  his  art,  of  with  misconduct  therein. 

§  195.  It  was  held  actionable  to  publish  orally  of  a 
minister  of  the  gospel :  that  he  preaches  lies  in  the  pulpit ; 2 
he  made  a  seditious  sermon,3  he  hath  two  wives,4  he  is  a 
drunkard,3  or  incontinent,6  or  guilty  of  incest,7  or  he  has  a 
bastard,8  or  he  is  a  perjured  priest.9  The  following  words 
were  held  not  actionable,  spoken  of  one  who  was  a  min- 
ister at  the  time  of  the  publication,  and  who  had  been  a 
draper  in  partnership  with  H.  P.,  and  who  had  a  contro- 
versy with  H.  P.  as  to  the  partnership  accounts :  "  I  do 
not  go  by  reports,  I  go  by  a  knowledge  of  facts.  Mr.  H. 
(the  plaintiff)  is  a  rogue,  and  I  can  prove  him  to  be  so  by 
the  books  at  S.     He  pretends  to  say  he  has  been  as  good 

1  Secor  v.  Harris,  18  Barb.  425,  and  Sumner  v.  Utley,  7  Conn.  257;  Johnson  v. 
Robertson,  8  Port.  486 ;  Camp  v.  Martin,  23  Conn.  86. 

2  Drake  v.  Drake,  Sty.  363;  and  see  Cranden  v.  Walden,  3  Lev.  17;  Bishop  of 
Norwich  Case,  Cro.  Eliz.  1 ;  Dod  v.  Robinson,  Aleyn,  63,  and  Gallwey  v.  Marshall,  9 
Ex.  294. 

3  Phillips  v.  Badly,  4  Rep.  19  a. 

*  Nicholson  v.  Lynes,  Cro.  Eliz.  94. 

5  McMillan  v.  Birch,  1  Binn.  178;  Chaddock  v.  Briggs,  13  Mass.  248;  contra,  see 
Buck  v.  Hersey,  31  Maine  (1  Red.)  558;  O'Hanlon  v.  Myers,  10  Rich.  Law  (So.  Car.) 
128.  In  Dod  v.  Robinson,  Aleyn,  63,  the  words  were :  You  are  a  drunkard,  a  whore- 
master,  a  common  swearer  and  a  common  liar,  and  you  have  preached  false  doctrine, 
and  deserve  to  be  degraded.     These  words  were  held  actionable. 

6  Demarest  v.  Haring,  6  Cow.  76.  It  seems  that  ia  England  to  render  such  a 
charge  actionable,  the  person  affected  must  be  beneficed,  or  in  the  actual  receipt  of 
professional  emolument  as  a  preacher,  lecturer,  or  the  like.  (Gallwey  v.  Marshall,  9 
Ex.  294;  and  see  note  12  p.  238,  ante.)  Saying  of  a  Methodist  minister  that  he 
kept  company  with  whores,  held  not  actionable  without  special  damage.  (Breeze  v. 
Saris,  23  Up.  Can.  Q.  B.  94.) 

7  Spoken  of  a  paid  preacher  or  lay  exhorter  of  the  Methodist  Church.  (Starr  v. 
Gardner,  6  Up.  Can.  Q.  B.  Rep.  0.  S.  512.) 

8  Special  damage  being  alleged.  (Payne  v.  Beaumorris,  Lev.  24S.)  He  is  a  lewd 
adulterer,  and  hath  two  children  by  the  wife  of  0.  S.,  spoken  of  a  clergyman,  held 
not  actionable.  (Parret  v.  Carpenter,  Koy,  64,  and  ante,  note  2,  p.  272.)  And  so  of  the 
words,  You  are  an  old  rogue,  rascal,  and  contemptible  fellow.  (Musgrove  v.  Bovey, 
Sura.  946.) 

9  Hogg  v.  Vaughan,  Sty.  6. 


§  195.]  CONCERNING    SPECIAL    CHARACTERS.  285 

as  a  father  to  H.  P.,  when  in  fact  he  has  been  robbing  him. 
He  has  cheated  P.  of  £2,000.  I  will  so  expose  hhn  that 
he  will  not  be  able  to  hold  up  his  head  in  T.  pulpit.  *  *  * 
I  wonder  how  any  respectable  person  can  countenance 
such  a  man  by  their  presence.  I  have  been  advising  some 
persons  to  go  to  the  Wesleyan  chapel  as  they  would  hear 
plain  honest  men." *  So  the  following  words  spoken  of  a 
clergyman  were  held  not  actionable :  "  Dr.  P.  (plaintiff ) 
placed  before  me  a  bill,  I  signed  it ;  I  do  not  know  for 
what  amount  it  was,  for  I  was  completely  pigeoned  by  Dr. 
P."  (plaintiff).2  In  the  same  case  the  following  words 
spoken  of  a  clergymen,  held  to  touch  him  in  his  profes- 
sional character,  and  to  be  actionable :  "  The  very  day  I 
came  into  residence,  Dr.  P.  (plaintiff)  sent  for  me;  I  went 
and  dined  with  him,  and  the  wine  must  have  been 
drugged,  for  I  took  but  two  glasses  and  was  quite  stupe- 
fied. While  in  this  condition  Dr.  P.  put  a  bill  into  my 
hands,  and  requested  me  to  sign  it,  saying,  C.  just  put 
your  name  to  this ;  I  wish  to  have  it  as  a  security  for  the 
payment  of  .£130  per  annum  for  reading  for  you.  I  an- 
swered, Give  me  a  pen  and  I  will  sign  it.  Immediately  I 
had  signed  it,  Dr.  P.  snatched  it  up  and  said,  This  will  be 
quite  safe.  The  bill  I  think  was  drawn  for  £2,500,  but 
having  been  stupefied  with  the  wine  I  do  not  rightly  re- 
member. You  cannot  suppose  I  can  meet  a  man  who  so 
cheated  me  at  my  first  coming  ? "  It  is  actionable  to  charge 
a  Protestant  archbishop  with  having  sought  by  means  of. 
a  bribe  to  induce  a  Romish  priest  to  abandon  his  religious 
creed.3     It  was  held  not  actionable  to  charge  a  Roman 


1  Hopwood  v.  Thorn,  8  C.  B.  293. 

2  Peraberton  v.  Colls,  1011 ;  16  Law  Jour.  403,  Q.  B.  To  charge  a  bishop  with 
being  a  wicked  man  (Thomas  v.  Hughes,  2  Mod.  189),  or  a  bankrupt,  said  to  be  action- 
aide  (Holt  on  Libel,  233,  note);  and  held  actionable  to  publish  in  writing  that  the 
plaintiff,  a  clergyman,  had  caused  a  misunderstanding  in  his  congregation  by  personal 
invectives  from  the  pulpit  against  a  young  lady  of  spotless  reputation.  (Edwards  v. 
Bell,  8  Moore,  4GY.) 

3  Tuam  v.  Robeson,  5  Bing.  IT;  2  M.  <fe  P.  32. 


286  "WHAT   LANGUAGE   IS   ACTIONABLE        [CL   VULL 

Catliolic  priest  with  having  imposed  certain  penance,  there 
being  nothing  to  show  that  enjoining  such  penance  affected 
his  character  as  such  priest.1  To  publish  in  writing  of  a 
clergyman  that  he  came  to  the  performance  of  divine  serv- 
ice in  a  towering  passion,2  or  that  he  desecrated  a  portion 
of  the  church  by  turning  it  into  a  cooking  apartment,3  held 
actionable. 

§  196.  As  regards  language  concerning  one  in  an  office, 
the  same  general  principles  apply  as  to  language  concern- 
ing one  in  trade.  Language  concerning  one  in  office  which 
imputes  to  him  a  want  of  integrity  or  misfeasance  in  his 
office,  or  a  want  of  capacity  generally  to  fulfill  the  duties 
of  his  office,  or  which  is  calculated  to  diminish  public 
confidence  in  him,4  or  charges  him  with  a  breach  of  some 
public  trust,  is  actionable.5  But  as  in  the  case  of  one 
in  trade,  the  language  to  be  actionable  must  touch  him  in 
his  office.6  To  charge  a  judge  with  erring  in  judgment  or 
disregarding  public  sentiment,  or  with  any  impropriety 
which  would  not  furnish  a  cause  of  impeachment,  is  not 
actionable  per  se  /  but  to  charge  that  he  had  "  abandoned 
the  common  principles  of  truth,"  or  "  lacked  capacity  as  a 
judge,"  or  made  the  office  of  clerk  of  his  court  a  subject  of 
private  negotiation,  is  actionable  per  se?  So  it  is  action- 
able ^><?r  se  to  charge  that  a  judge  improperly  put  his  offi- 
cial signature  to  the  jurat  of  a  paper  in  the  forrn  of  an 
affidavit,8  or  procured  one  to  take  a  false  oath,9  or  took  a 

1  Hearne  v.  Stowell,  12  Adol.  &  El.  719. 

2  Walker  v.  Brogden,  19  C.  B.  N  S.  65. 

8  Kelly  v.  Sherlock,  Law  Rep.  1  Q.  B.  686. 
4  Lansing  v.  Carpenter,  9  Wis.  540. 

6  Kinney  v.  Nash,  3  N.  Y.  IV 7,  and  authorities  there  referred  to. 

e  McGuire  v.  Blair,  2  Law  Reporter,  443,  and  ante,  §  190.  So  that  charging  a 
justice  with  misfeasance  in  trying  a  cause,  not  within  his  jurisdiction,  was  held  not 
actionable  as  not  affecting  him  as  justice.  (Oram  v.  Franklin,  5  Blackf.  42;  see,  how- 
ever, Carter  v.  Andrews,  16  Pick.  1 ;  Stone  v.  Clark,  21  id.  51.) 

7  Robbins  v.  Treadway,  2  J.  J.  Marsh.  540. 

8  Dollaway  v.  Turrill,  26  Wend.  383;  17  id.  426. 

9  Chetwind  v.  Meeston,  Cro.  Jac.  308. 


§  196.]  CONCERNING   SPECIAL    CHARACTERS.  287 

bribe,1  or  acted  unjustly  in  bis  office,9  or  to  charge  that 
be  is  a  lewd  or  false,3  or  corrupt,4  or  a  partial,5  or  balf 
eared,  and  will  bear  but  one  side,  or  that  be  cannot  bear 
of  one  ear,6  or  tbat  be  perverted  justice,7  or  made  use  of 
bis  office  to  worry  one  out  of  bis  estate,8  or,  He  is  forsworn 
and  not  fit  to  sit  upon  a  bencb,9  or,  He  did  seek  my  life 
and  offered  ten  shillings  to  the  under-sheriff  to  empanel  a 
jury  tbat  migbt  find  me  guilty.10  But  held  not  actionable 
to  publish  orally  of  a  justice,  He  is  a  blood-sucker  and 
seeketb  after  blood,  if  a  man  will  give  bim  a  couple  of 
capons  be  will  take  them ; n  or,  You  robbed  tbe  poor  and 
are  worse  than  a  bighwayinan.1'2  It  is  not  actionable  to 
say  of  a  mayor,  He  is  a  rogue  and  rascal ; 13  or  of  an  alder- 

1  Cotton's  Case,  Mo.  695.  In  Lindsey  v.  Smith,  7  Johns.  360,  an  action  was  sus- 
tained for  the  words,  "  Lindsey  had  been  feed  by  Abner  Wood,  and  I  could  do  nothing 
when  the  magistrate  was  in  that  way  against  me." 

2 1  have  often  been  with  him  for  justice,  but  could  never  get  any  at  his  hands  but 
injustice.  ( Isham  v.  York,  Cro.  Car.  14.)  Actionable  to  say  of  a  judge,  his  sentence 
was  corruptly  given.  See  Chaddock  v.  Briggs,  13  Mass.  253;  Chipman  v.  Cook,  2 
Tyler,  456. 

5  "Wright  v.  Moorhouse,  Cro.  Eliz.  358. 

4  Caesar  v.  Curseny,  Cro.  Eliz.  305.  Tou  are  a  rascal,  a  villain,  and  a  liar,  spoken 
of  a  magistrate  in  the  execution  of  his  office,  the  words,  import  a  charge  of  corrup- 
tion. (Aston  v.  Blagrave,  1  Strange,  617;  2  L'd  Raym.  1369.)  And  so  of  the  term 
rogue.    (Kent  v.  Pocock,  2  Str.  1168.) 

5  Kemp  v.  Housgoe,  Cro.  Jac.  90. 

8  Masham  v.  Bridges,  Cro.  Car.  223,  and  Alleston  v.  Moor,  Het.  167. 
T  Delaware  v.  Pawlet,  Mo.  409. 

8  Newton  v.  Stubbs,  3  Mod.  71. 

9  Cam  v.  Osgood,  1  Levinz,  280;  s.  c,  Kerle  v.  Osgood,  1  Vent.  50;  and  see 
Pepper  v.  Gay,  2  Lutw.  1288;  Stutley  v.  Bulhead,  4  Rep.  16  a,  19  a  ;  Lassels  v.  Las- 
Bels,  Mo.  401;  Hollis  v.  Briscow,  Cro.  Jac.  58;  Burton  v.  Tokin,  Cro.  Jac.  143;  Bea- 
mond  v.  Hastings,  Cro.  Jac.  240. 

10  Bleverhassett  v.  Baspoole,  Cro.  Eliz.  313. 

u  llilliard  v.  Constable,  Mo.  418.  Held  actionable  to  publish  in  writing  of  a  jus- 
tice that  he  had  been  chairman  of  a  finance  committee,  and  had  audited  accounts,  con- 
taining items  nominally  to  furnish  lodgings  for  the  judges,  but  in  reality  for  the 
accommodation  of  the  magistrates;  innuendo  that  plaintiff  had  conducted  himself 
corruptly  in  his  office  of  justice.  (Adams  v.  Meredew,  8  Y.  t&  J.  219,  overruling 
s.  c,  2  Y.  &  J.  417.     This  case  was,  it  is  said,  carried  to  the  House  of  Lords.) 

"  Palmer  v.  Edwards,  Rep.  of  Cas.  of  Prac.  in  C.  B.  160. 

13  Reg  v.  Langley,  6  Mod.  125;  2  Salk.  697. 


288  WnAT   LAKGUAGE   IS    ACTIOXABLE        [Cll.  VIII. 

man,  When  he  puts  on  his  gown  Satan  enters  it ; 1  or  of 
an  under-sheriff,  Thou  didst  serve  an  execution  and  keep 
in  thy  hands  the  money  collected.2  But  it  is  actionable 
to  charge  a  sheriff  with  malpractice  in  his  office ; 3  or  to 
say  of  a  constable,  He  is  not  worthy  of  his  office,  for  he 
and  his  company  the  last  time  he  was  constable  stole  five 
of  my  swine  and  eat  them  ; 4  or  to  publish  in  writing  of  a 
police  officer  that  he  had  been  guilty  of  blackmailing  and 
had  been  dismissed  for  that  cause.5  But  held  not  action- 
able to  publish  orally  of  a  police  officer,  I  saw  a  letter 
respecting  an  officer  of  the  L.  police,  who  had  been  guilty 
of  conduct  unfit  for  publication,  there  being  no  allegation 
of  special  damage  and  the  charge  not  being  connected  with 
his  official  character.6  It  is  actionable  to  publish  orally  of 
the  director  of  a  public  company,  that  he  had  sold  the 
property  of  the  company  and  pocketed  the  money ; T  or  of 
a  town  clerk  acting-  as  moderator  of  a  town  meeting-  that 
he  had  fraudulently  destroyed  a  vote ; 8  or  of  an  admin- 
istrator, that  he  had  been  guilty  of  fraud  in  the  appraise- 
ment of  the  estate  of  the  decedent ; 9  or  of  a  juror,  that 
he  agreed  with  another  juror  to  determine  the  amount  of 
damages  to  be  given  in  a  certain  cause  in  which  he  acted 
as  juror,  by  the  result  of  a  game  of  draughts.10     A  church- 

1  2  Starkie  on  Slander,  314. 

2  Geeve  v.  Copshill,  Cro.  Eliz.  854. 

3  Dole  v.  Van  Rensselaer,  1  Johns.  Cas.  330. 

4  Taylor  v.  Howe,  Cro.  Eliz.  861.  Doubtful  if  actionable  to  say  of  a  constable, 
Thou  art  a  cozening  knave,  and  has  cozened  the  parish  in  rates  to  £30.  (Thomas' 
Case,  Het.  36.) 

6  Edsall  v.  Brooks,  17  Abb.  Pra.  R.  221 ;  2  Robertson,  29. 

6  James  v.  Brook,  9  Q.  B.  7;   16  Law  Jour.  17  Q.  B. ;  10  Jur.  541. 

7  Johnson  v.  Shields,  1  Dutch er,  116. 

8  Dodds  v.  Henry,  9  Mas.  262. 

9  Beck  v.  Stitzel,  21  Penn.  St.  R,  (9  Harris),  522. 

10  Commonwealth  v.  Wright,  1  Cush.  46.  The  charge  was  in  writing.  Held  action- 
able to  publish  orally  of  a  juryman.  Thou  art  a  common  juryman,  and  hast  been  the 
overthrow  of  one  hundred  men  by  thy  false  means.  (Vin.  Abr.  Act.  fur  "Words,  F.  a. 
23.) 


§  196.]  CONCERNING    SPECIAL    CHARACTERS.  289 

warden  holds  a  temporal  office,  and  to  charge  him  with 
cheating  the  parish,  is  actionable.1  It  is  actionable  to  pub- 
lish in  writing  of  a  court  commissioner,  that  he  will  act  in 
his  judicial  office  according  to  the  views  of  the  persons 
"  whose  tool  and  toady  he  is,  and  that  the  past  would  war- 
rant the  depriving  him  of  his  office ;" 2  of  an  overseer,  that 
when  out  of  office  he  advocated  low  rates,  and  that  he 
(defendant)  would  not  trust  him  (plaintiff)  with  .£5  of 
his  private  property ; 3  or  of  an  overseer,  that  he  had  been 
guilty  of  illiberal  and  illegal  practices  towards  paupers,  in 
compelling  them  to  procure  goods  from  a  particular  per- 
son, and  threatening  him  with  the  rjenalties  of  the  act 
against  such  practices ; 4  or  of  a  postmaster,  who  resided 
in  the  house  used  as  the  post-office,  that  the  house  in  which 
the  post-office  is  kept  is  of  such  a  low  character  that  a 
decent  lady  dare  not  enter.5  And  actionable  to  publish 
orally  of  a  postmaster  that  he  opened  a  letter,  took  money 
out  of  it,  and  appropriated  it  to  his  own  use,  and  kept 
and  embezzled  letters ; 6  or  that  he  would  rob  the  mail  for 
five  hundred  dollars — yes,  he  would  rob  the  mail  for  five 
dollars.7  It  is  not  actionable  to  charge  a  member  of  Par- 
liament with  want  of  sincerity ; 8  or  a  member  of  the  legis- 

1  Townsend  v.  Barker,  Sty.  394  ;  Woodruff  v.  Wooley,  Curt.  1 ;  Strode  v.  Holmes, 
Sty.  338;  and  see  Hutton  v.  Beck,  Cro.  Jac.  339;  Hopton  v.  Baker,  2  Bulst.  218; 
Willis  v.  Shepherd,  Cro.  Jac.  619;  Harle  v.  Catherall,  14  L.  T.  N.  S.  801. 

2  Lansing  v.  Carpenter,  9  Wis.  540. 

3  The  jury  found  that  the  words  imputed  dishonesty.  (Cheese  v.  Scales,  10  M.  <fe 
W.  448.) 

4  Woodard  v.  Dowsing,  2  M.  &  Ry.  74. 

6  Johnson  v.  Stebbins,  5  Ind.  (Porter),  364. 

6  Hays  v.  Allen,  3  Blackf.  408.  See  contra,  McCnen  v.  Ludlum,  2  Harrison,  12, 
and  notes  12,  p.  237,  <fe  4,  p.  253,  ante,  and  Taylor  v.  Kneeland,  1  Doug.  67. 

7  Craig  v.  Brown,  5  Blackf.  44. 

8  Onslow  v.  Home,  2  W.  Black.  750;  3  Wils.  177.  The  words  complained  of 
were:  "As  to  instructing  our  members  to  obtain  redress,  I  am  totally  against  that 
plan;  for  as  to  instructing  Mr.  Onslow  (the  plaintiff),  we  might  as  well  instruct  the 
winds,  and  should  he  (the  plaintiff)  ever  promise  his  assistance,  I  should  not  expect 
him  to  give  it  us."  One  of  the  reasons  for  holding  the  words  not  actionable  was,  they 
did  not  charge  the  plaintiff  with  any  breach  of  his  duty,  bis  oath,  or  any  crime  or 
misdemeanor  whereby  he  had  suffered  any  temporal  loss,  in  future  office,  or  in  any 
way  whatever. 


290  WHAT   LANGUAGE   IS   ACTIONABLE        [Cll.  VIII. 

lature,  in  reference  to  the  future  discharge  of  his  functions, 
with  being  a  corrupt  old  tory.1  It  is  actionable  to  publish 
in  writing  of  a  member  of  Congress,  "  He  is  a  fawning 
sycophant,  a  misrepresentative  in  Congress,  and  a  grovel- 
ing office-seeker ;  he  has  abandoned  his  post  in  Congress 
in  pursuit  of  an  office ;" 2  or  of  a  lieutenant-governor,  that 
he  was  in  a  beastly  state  of  intoxication  while  in  the  dis- 
charge of  his  duty  in  the  senate,  and  was  an  object  of 
loathing  and  disgust;3  or  a  commissioner  of  bankrupts, 
with  being  a  misanthropist,  and  violent  partisan,  stripping 
unfortunate  debtors  of  every  cent,  and  then  depriving  them 
of  the  benefit  of  the  act.4  In  an  action  by  G.,  a  United 
States  collector,  for  slander,  the  declaration  charged  these 
words :  "  Gr.  has  not  accounted  to  the  department  for  the 
sum  paid  by  W.  by  some  $32,000."  "  In  the  settlement  of 
the  funds  of  ~VV.,  amounting  to  many  hundreds  of  thou- 
sands of  dollars,  the  amount  paid  by  them  was  $135,224; 
only  $125,224  was  accounted  for,  of  which  $62,612  was 
credited  to  the  government,  leaving  the  same  amount 
($62,612)  divided  between  the  collector,  the  naval  officer, 
and  the  surveyor ;  it  is  not  known  what  has  been  done 
with  the  balance,  amounting  to  the  large  sum  of  $32,000, 
and  it  is  understood  that  this  settlement  was  made  through 
the  interventions  of  S.  and  his  partner,  the  late  deputy 
collector ;  it  is  discreditable  to  the  government  to  have  it 
generally  known  that  the  sum  of  $157,224  was  paid  by 
W.  in  a  settlement  with  the  government,  and  that  $32,000 
of  that. sum  was  not  accounted  for."  No  words  alleging  a 
failure  to  pay  on  demand  were  charged.  The  innuendoes 
averred  the  imputation  of  embezzlement  and  of  receiving 
a  bribe.     Held,  that  the  words  were  not  actionable.5 

1  Hogg  v.  Dorrah,  2  Port.  212. 

2  Thomas  v.  Crosswell,  1  Johns.  264;  and  see  Vilson  v.  !Xoonan,  23  Wis.  105 

3  Root  v.  King,  7  Cow.  613;  4  Wend.  113. 

4  Eiggs  v.  Denniston,  3  Johns.  Cas.  198. 
6  Goodrich  v.  Hooper,  97  Mass.  1. 


§  197.]  "WITH    SPECIAL    DAMAGE.  291 

§  197.  We  have  already  directed  attention  to  the  dis- 
tinction between  patently  and  latently  wrongful  acts,  and 
to  the  rule  of  law  that  the  necessary  and  natural  and  prox- 
imate consequences  of  an  act  are  those  alone  for  which  the 
actor  is  responsible  (§  61)  ;  and  we  have  pointed  out  the 
difference  between  language  being  actionable  per  se 
and  actionable  only  by  reason  of  special  damage  (§  146). 
So  far,  this  chapter  has  been  solely  devoted  to  language 
actionable  per  se  /  we  have  now  to  consider  what  language 
concerning  a  person  is  actionable,  because  and  only  because 
its  publication  has  occasioned  special  damage.  "  Undoubt- 
edly, all  words  are  actionable  if  a  special  damage  follows." 1 
"  Any  words  are  actionable  by  which  the  party  has  a  spe- 
cial damage." 2  "  To  make  words  actionable,  they  must  be 
such  that  special  damage  may  be  the  fair  and  natural  re- 
sult of  them." 3  "  There  must  be  some  limit  to  liability 
for  words  not  actionable  per  se,  both  as  to  the  words  and 
the  kind  of  damages,  and  a  clear  and  wise  one  has  been 
fixed  by  law."4  The  limitation  is,  that  special  damage 
must  ensue.  But  what  is  meant  by  special  damage  ?  Spe- 
cial damage  is  a  term  ambiguously  employed  ;  properly,  it 
connotes  the  natural  and  proximate  but  not  necessary  con- 
sequences of  a  wrongful  act ; 5  but  it  is  frequently  used  to 


1  Heath,  J.,  Moore  v.  Meagher,  1  Taunt.  39 ;  and  see  among-  other  cases,  Wilby  v. 
Elston,  13  Jur.  706;  8  C.  B.  142;  V  Dowl.  &  L.  143;  Barnes  v.  Trundy,  31  Maine  (1 
Red.)  321;  McCuen  v.  Ludlum,  2  Harrison  12;  Bentley  v.  Reynolds,  1  McMullan,  16. 
Acts  (words)  may  be  harmless  in  themselves,  so  long  as  they  injure  no  one,  but  the 
consequences  of  acts  ( words)  often  give  character  to  the  acts  (words)  themselves. 
(Van  Pelt  v.  McGraw,  4  N.  Y.  113.) 

2  Comyn's  Dig.,  Act.  for  Dcfam.  D,  30. 

'  Taunton,  J.,  Kelly  v.  Partington,  3  Nev.  &  M*  116;  5  B.  &  Adol.  645. 

4  Strong,  J.,  Terwilliffer  v.  Wands,  11  N.  Y.  61. 

6  Such  damages  as  are  the  natural,  although  not  the  necessary  result  of  the  injury, 
are  termed  special  damages.  (Vanderslice  v.  Newton,  4  N.  Y.  132.)  The  special 
damage  must  be  the  immediate,  not  the  remote  consequence  of  the  publication.  (Beach 
v.  Ranney,  2  Hill,  309;  Sewell  v.  Catlin,  3  Wend.  291.)  "The  damage  must  be  the 
natural  and  proximate  consequence  of  the  wrongful  act  complained  of."  (2  Smith's 
Lead.  Cas.  534,  6th  ed.)  "1  have  always  understood  that  the  special  damage  must 
be  the  natural  result  of  the  thing  done."  (Patteson,  J.,  Kelly  v.  Partington,  5  B.  ifc 
Adol.  546;)  and  see  Iladdon  v.  Lott,  15  C.  B.  411 ;  24  Law  Jour.  Rep.  N.  S.  49  C.  P. 


292  WHAT   LANGUAGE   IS    ACTIONABLE        [Cll.  VIII. 

indicate  any  or  all  loss  which,  not  being  a  necessary  con- 
sequence, is  the  subject  of  other  proof  than  the  mere  com- 
mission of  the  act  complained  of,  and  without  regard  to 
whether  such  loss  is  or  is  not  a  natural  or  natural  and 
proximate  consequence  of  such  act.  The  term  is  employed 
in  the  latter  sense  when  it  is  said  that  language  which 
occasions  special  damage  is  not  actionable  unless  it  be  de- 
famatory,1 which  is  equivalent  to  saying,  that  language 
which  as  a  natural  and  proximate  consequence  occasions 
loss,  is  not  actionable  unless  it  is  injurious  (defamatory). 
If  the  language  is  not  injurious  (defamatory)  in  its  nature, 
it  cannot  as  a  natural  consequence  occasion  loss,  and  it 
may  well  be  that  none  other  than  language  defamatory  in 
its  nature  (disparaging)  can  as  a  natural  and  proximate 
consequence  occasion  loss.  It  may  be  correct  to  say  that 
"  to  make  the  words  wrongful  they  must  in  their  nature 
be  defamatory," 2  provided  the  rule  thus  expressed  be  under- 
stood as  being  subordinate  to  and  implied  in  the  more 
comprehensive  rule,  that  to  render  actionable  that  language 
which  is  not  actionable  per  se,  the  language  must  occasion 
special  damage,  in  the  proper  sense  of  that  term.3  The 
real  question  must  always  be,  was  the  damage  complained 
of  a  natural  and  proximate  consequence  of  the  publica- 
tion.4 For  "  it  is  a  rule  equally  consistent  with  good  sense, 
good  logic,  and  good  law,  that  a  person  who  would  recover 
damages  for  an  injury  occasioned  by  the  conduct  of  another, 


1  "  The  special  damage  will  not  help  you  if  the  words  are  not  defamatory."  (Black- 
burn, J.,  Young  v.  McCrae,  3  Best  &  S.  264 ;  7  Law  Times,  N.  S.  354.) 

2  Patteson,  J.,  Kelly  v.  Partington,  5  B.  &  Adol.  645. 

3  "  I  cannot  agree  that  words  laudatory  of  a  person's  conduct  would  he  the  subject 
of  an  action  if  they  were  followed  by  special  damage.  They  must  be  defamatory  or 
injurious  in  their  nature."  (Littledale,  J.,  Kelly  v.  Partington,  3  Nev.  k  M.  117;  5 
B.  &  Adol.  645.)  "  The  words  must  be  defamatory  in  their  nature ;  and  must  in  fact 
disparage  the  character,  and  this  disparagement  must  be  evidenced  by  some  positive 
loss  arising  therefrom  directly  and  legitimately  as  a  fair  and  natural  result."  (Strong, 
J.,  Terwilliger  v.  Wands,  17  N.  Y.  61);  and  see  Hallock  v.  Miller,  2  Barb.  633. 

4  Denman,  Ch.  J.,  Knight  v.  Gibbs,  3  Xev.  cfc  M.  467;  1  AdoL  <fc  El.  48. 


§  198.]  WITH    SPECIAL   DAMAGE.  293 

must  show  as  an  essential  part  of  his  case,  the  relation  of 
cause  and  effect  between  the  conduct  complained  of  and 
the  injury  sustained." 1 

§  198.  What  is  special  damage  %  Special  damage  con- 
sists 2  in  the  loss  of  marriage,  loss  of  consortium  of  husband 
and  wife,3  loss  of  emoluments,  profits,  customers,  employ- 
ment, or  gratuitous  hospitality,4  or  by  the  being  subjected 
to  any  other  inconvenience  or  annoyance  occasioning  or 
involving  an  actual  or  constructive  pecuniary  loss.5  The 
special  damage  must  be  the  loss  of  some  material  tem- 
poral advantage.     Loss  of  consortium  vicinorum  is  not 


1  Olnistead  v.  Brown,  12  Barb.  662. 

8  "As  to  what  constitutes  special  damage,  Starkie  mentions  the  loss  of  marriage, 
loss  of  hospitable  gratuitous  entertainment,  preventing  a  servant  or  bailiff  from  get- 
ting a  place,  the  loss  of  customers  by  a  tradesman,  and  says  that,  in  general,  when- 
ever a  person  is  prevented  by  the  slander  from  receiving  that  which  would  other- 
wise be  conferred  upon  him,  though  gratuitously,  it  is  sufficient."  (Terwilliger  v. 
Wands,  17  N.  Y.  60;  citing  Starkie  on  Slander,  195,  202;  Cooke  on  Defam.  22,  24.) 
Plaintiffs  being  refused  employment  (Strong  v.  Forman,  2  Car.  &  P.  592),  or  iu- 
surance  upon  a  ship  of  which  he  was  master  (Shipman  v.  Burrows,  1  Hall,  399),  is 
special  damage. 

3  Lynch  v.  Knight,  5  Law  Times,  N.  S.  291 ;  9  Ho.  L.  577,  Parkins  v.  Scott,  6 
Law  Times,  N.  S.  394;  1  H.  L.  153  ;  Koberts  v.  Roberts,  33  Law  Jour.  Q.  B.  249,  and 
see  Claytou,  73. 

4  Moore  v.  Meagher,  1  Taunt.  39;  Williams  v.  Hill,  19  Wend.  305. 

8  "  All  the  cases  proceed  upon  the  assumption  that  the  plaintiff  has  sustained 
some  pecuniary  loss  in  consequence  of  the  slander.  It  is  not  sufficient  that  she  has 
fallen  into  disgrace,  contempt,  and  infamy,  and  lost  her  credit,  reputation,  and  peace 
of  mind,  or  the  society  or  good  opinion  of  her  neighbors,  uuless  she  has  been  injured 
in  her  estate  or  property."  (Woodbury  v.  Thompson,  3  N.  Hamp.  194;  and  see  ante, 
notes  2,  p.  103,  and  2,  p.  107;  Kelly  v.  Partington,  3  Nev.  &  M.  116;  Keenholts  v. 
Decker,  3  Denio,  346;  Foulger  v.  Newcomb,  Law  Rep.  II,  330,  Ex.)  And  because,  in 
England,  the  fees  of  barristers  and  physicians  are  honorary,  it  has  been  doubted  if 
barristers  or  physicians  can  sustain  special  damage  in  their  professions.  (Brown  v. 
Kennedy,  32  Law  Journ.  Chan.  342.)  The  doubt,  however,  is  ill-founded,  as  the  loss  of 
a  gratuity  is  special  damage.  (Hartley  v.  Herring,  8  T.  R.  130,  and  note  2  supra,  and 
note  1,  p.  298,  post.)  "  One  essential  element  of  a  good  cause  of  action  for  defamation  is 
damage, "but  in  Terwilliger  v.  Wands,  17  N.  Y.  61,  and  Wilson  v.  Goit,  id.  442,  the  whole 
tenor  of  the  opinions  imply  that  loss  of  reputation  is  the  gist  of  the  action,  and  in  the 
first  named  case  it  is  said,  "  It  is  injuries  affecting  the  reputation  only,  which  are  the 
subject  of  tlie  action."  "The  special  damage  must  flow  from  impaired  reputation." 
This,  however,  may  mean  only  that  the  language  must  be  defamatory.  See  ante, 
note  2,  p.  103. 


294  WHAT   LANGUAGE   IS    ACTIONABLE        [Ch.  VIII. 

sufficient.1  Where  words  were  spoken  imputing  un- 
chastity  to  a  woman,  by  reason  whereof  she  was  excluded 
from  a  private  society  and  congregation  of  a  sect  of 
Protestant  dissenters,  of  which  she  had  therefore  been  a 
member,  and  was  prevented  from  obtaining  a  certificate, 
without  which  she  could  not  become  a  member  of  any 
other  society  of  the  same  nature,  held  that  such  a  result 
was  not  "  special  damage,"  and  did  not,  render  the  words 
actionable,2  but  an  action  was  held  maintainable  where 
the  plaintiff,  an  unmarried  woman,  in  consequence  of  a 
charge  of  incontinence,  was  refused  civil  treatment  at  a 
hotel  or  tavern.3  A  charge  of  incontinence  against  an  un- 
married woman,  whereby  she  loses  her  marriage,  is  action- 
able,4 as  to  say  of  the  plaintiff,  Anne  Reston  hath  had  a 
child,  and  if  she  has  not  a  child,  she  has  made  away  with 
it ; 5  or,  You  ought  not  to  marry  M.,  the  plaintiff,  for  be- 
fore God  she  is  my  wife,  and  therefore  if  you  do,  you  will 
live  in  adultery,  and  your  children  will  be  bastards.6 
Loss  of  a  wife  is  the  same  to  a  man  as  loss  of  a  husband 
is  to  a  woman,  and  therefore,  where  the  defendant  called 
the  plaintiff  a  whoremaster,  whereby  he  lost  his  marriage, 
it  was  held  he  could  maintain  his  action  ; 7  and  so  saying 
of  one  who  was  a  widower  that  he  had  kept  his  wife 
basely,  and  starved  her  or  denied  her  necessaries,  whereby 
he  lost  his  marriage,  was  held  actionable ; 8  and  calling 

1  Roberts  v.  Roberts,  33  Law  Jour.  Q.  B.  250;  Beach  v.  Ranney,  2  Hill,  309. 

5  Roberts  v.  Roberts,  33  Law  Jour.  Q.  B.  250. 

3  Olrastead  v.  Miller,  1  Wend.  510. 

4  Davis  v.  Gardiner,  4  Co.  1 6. 

6  Reston  v.  Pomfreict,  Cro.  Eliz.  639. 

6  Shepherd  v.  Wakeman,  Sid.  79;  Lev.  37.  Saying  of  a  woman,  she  was  a  man, 
not  a  woman,  with  special  damage  held  actionable.  (Pye  v.  "Wallis,  cited  Curt.  55.) 
See  Hermaphrodite. 

7  Matthew  v.  Crass,  Cro.  Jac.  323  ;  2  Bulst.  S6 ;  and  see  Sell  v.  Facy,  2  Bulst.  276 ; 
Southall  v.  Dawson,  Cro.  Car.  269;  contra,  see  Witcher's  Case,  Keb.  119.  In  Taylor 
v.  Tally,  Palmer.  385,  defendant  said  of  plaintiff  that  he,  plaintiff,  had  ravished  the 
wife  of  II. ;  and  plaintiff  alleging  that  thereby  he  lost  his  marriage,  the  words  were 
held  actionable. 

0  Anon.  Mar.  2;  Wicks  v.  Shepherd,  Cro.  Ca"   155. 


§  198.]  WITH    SPECIAL   DAMAGE.  295 

plaintiff  bastard,  whereby  he  lost  his  marriage,  was  held 
actionable.1  As  to  loss  of  customers,  where  it  was  said  of 
an  innkeeper,  I  (defendant)  saw  Cook  lie  with  Collins' 
(plaintiffs)  wife,  whereby  plaintiff  lost  his  customers,  it 
was  held  that  an  action  could  be  maintained ; 2  and  so 
where  it  was  said  of  an  innkeeper,  that  a  person  had  died 
in  his  house  of  the  plague,  whereby  his  (plaintiff's)  guests 
left  his  house,  it  was  held  he  might  maintain  his  action.3 
Words  imputing  incontinence  to  a  dissenting  minister, 
whereby  the  persons  frequenting  his  chapel  refused  to 
permit  him  to  preach,  and  discontinued  giving  him  certain 
reward  as  they  usually  had,  and  but  for  the  publication 
complained  of  would  have  done,  were  held  actionable.4 
Where  the  declaration  alleged  that  plaintiff  being  the 
proprietor  of  certain  rooms  adapted  for  a  dancing  academy, 
defendant  falsely  and  maliciously  published  of  the  build- 
ing and  rooms,  and  of  plaintiff  as  proprietor  thereof,  that 
"  the  magistrates  havins1  refused  to  renew  a  music  and 


1  Nelson  v.  Staff,  Cro.  Jac.  422.  Saying  of  the  plaintiff,  He  hath  been  in  bed  with 
Dorchester's  wife,  whereby  he  lost  his  marriage,  held  actionable.  (Southold  v. 
Daunston,  Cro.  Car.  269.) 

2  Collins  v.  Matthews,  3  Keb.  242. 

s  Comyn's  Dig.,  Act.  for  Def.  D.  29  ;  as  to  loss  of  customers,  see  Evans  v.  Harries, 
1  Hurl.  &  Nor.  251 ;  38  Eng.  Law  and  Eq.  R.  347 ;  Vin.  Abr.  Act.  for  Words,  U.  a. 
13;  Barrow  v.  Gibson,  L'd  Raym.  831;  1  Str.  566;  Bull.  N.  P.  7;  1  Lev.  140; 
Trenton  Ins.  Co.  v.  Perrine,  3  Zabr.  402.  Action  by  a  butcher  for  saying  a  cow,  the 
carcass  of  which  he  had  to  sell,  died  by  calving,  by  which  he  lost  his  customers, 
judgment  was  given  for  the  plaintiff,  but  reversed  on  error,  the  alleged  loss  of  cus- 
tomers being  too  general ;  but  held  that  had  it  been  laid,  the  plaintiff  exposed  the 
meat  for  sale,  and  by  reason  of  the  words  he  lost  the  sale,  the  action  could  have  been 
maintained.  '(Rice  v.  Pidgeon,  Comb.  161,  and  Tassan  v.  Rogers,  2  Salk.  693.)  "A 
distinction  has  been  made  between  particular  damage  and  general  damage ;  thus,  in 
an  action  for  slandering  a  man  in  his  trade,  when  the  declaration  alleges  that  he 
thereby  lost  his  trade,  he  may  show  a  general  damage  to  his  trade,  though  he  can- 
not give  evidence  of  particular  instances."  (Creswell,  J.,  Rose  v.  Groves,  5  M.  &  G. 
618.)  To  prove  the  loss  of  a  customer,  the  customer  must  be  called  to  prove  why  he 
ceased  to  deal  with  the  plaintiff,  and  if  the  witness  says  he  ceased  to  deal  with 
plaintiff  in  consequence  of  something  he  heard  from  one,  not  the  defendant,  it  is  not 
special  damage.  (Harnett  w.  Allen,  1  Fost.  &  F.  125  ;  and  see  Dixon  v.  Smith,  5  Hurl. 
&  N.  450 ;  Hirst  v.  Goodwin,  3  Fost.  &  F.  257.) 

4  Hartley  v.  Herring,  8  T.  R.  130. 


296  WHAT   LANGUAGE   IS    ACTIONABLE        [CL  VIII. 

dancing  license  to  the  proprietor,  all  such  entertainments 
there  carried  on  are  illegal,  and  the  proprietor  renders 
himself  thereby  indictable  for  keeping  a  disorderly  house, 
and  every  person  found  on  the  premises  will  be  appre- 
hended and  dealt  with  according  to  law,"  by  means  of 
which  publication  plaintiff  was  prevented  from  letting  said 
rooms ;  held  on  demurrer  that  the  declaration  disclosed  a 
cause  of  action.1 

§  199.  It  seems  that  where  the  person  to  whom  the 
publication  is  made  is,  by  reason  of  the  charge,  induced  to 
act  upon  it  to  the  prejudice  of  the  person  whom  it  may 
concern,  it  is  immaterial  whether  the  person  to  whom  the 
publication  was  made  believed  or  disbelieved  in  the  truth 
of  the  charge ;  thus,  where  a  charge  was  made  to  a  mis- 
tress against  a  female  (the  plaintiff)  in  her  employ,  in 
consequence  of  which  she  dismissed  the  plaintiff  from  her 
employ,  on  the  trial  she  testified  that  such  dismissal  was 
not  because  she  believed  the  charge  to  be  true,  but  be- 
cause she  was  afraid  she  should  offend  the  defendant,  her 
landlord,  by  retaining  plaintiff  in  her  employ ;  held,  that 
the  special  damage  being  the  consequence  of  the  charge, 
the  action  was  maintainable,  the  court  could  not  speculate 
upon  motives  of  witnesses.2 


1  Bignell  v.  Buzzard,  3  Hurl.  &  Nor.  217.  In  Dibdin  v.  Swan,  1  Esp.  Cas.  28,  the 
plaintiff  was  the  proprietor  of  a  place  of  amusement  called  Sans  Souci,  where  he  sang 
certain  songs  supposed  to  be  composed  by  himself;  he  sued  the  defendant,  the  propri- 
etor of  a  newspaper  called  the  World,  for  publishing  in  that  paper  that  such  songs 
were  not  composed  by  the  plaintiff;  that  on  the  first  night  when  plaintiff  Bttag  there 
had  been  a  very  thin  audience,  and  that  composed  of  persons  admitted  by  orders  (for 
free  admission),  and  that  the  applause  was  only  from  the  persons  so  admitted.  The 
report  does  not  state  the  result  of  the  case,  but  merely  the  charge  of  Lord  Kenyon, 
that  the  editor  of  a  newspaper  may  fairly  and  candidly  comment  on  any  place  or 
species  of  public  entertainment,  but  it  must  be  done  fairly  and  without  malice  or 
view  to  injure  the  proprietor.  That  if  so  done,  however  severe  the  censure,  the  justice 
of  it  screens  the  editor  from  legal  animadversion ;  but  if  the  comment  be  unjust, 
malevolent,  or  exceeding  the  bounds  of  fair  opinion,  it  is  actionable.  A<  to  comments 
on  theatrical  performances,  see  Fry  v.  Bennett,  5  Sand.  54 ;  3  Bosw.  200 ;  2S  X.  Y. 
324 ;  Gregory  v.  Duke  of  Brunswick,  6  M.  &  G.  953. 

8  Knight  v.  Gibbs,  3  Nev.  <fe  M.  467;  1  Adol.  &  El.  43.     I  do  not  know  that  the 


§    200.]  WITH    SPECIAL   DAMAGE.  297 

§  200.  Mere  apprehension  of  loss  is  not  such  special 
damage  as  will  maintain  an  action ;  as  where  defendant 
said  of  plaintiff  that  he  had  two  bastards,  and  the  alleged 
special  damage  was  that,  by  reason  of  the  words,  a  con- 
tention arose  between  plaintiff  and  his  wife,  and  he  was  in 
danger  to  be  divorced.1  And  where  the  defendant  said  of 
plaintiff,  she  is  with  child  by  T.  S.,  and  the  alleged  spe- 
cial damage  was  that  in  consequence  of  the  words  the 
father  of  plaintiff  threatened  to  turn  her  out  of  his  house, 
this  was  held  not  to  amount  to  such  special  damage  as 
would  support  an  action.2  Where  the  plaintiff  alleged 
that  she  was  a  single  woman  and  chaste,  and  that  her 
mother  meant  to  give  her  £150  and  her  brother  £100,  and 
that  by  reason  of  the  defendant's  charging  her  with  incon- 
tinence, they  did  not  give  her  these  sums,  it  was  doubted 
if  the  action  was  maintainable,  and  no  judgment  was  ren- 
dered.3 Again,  where  the  plaintiff  alleged  that  by  reason 
of  the  publication  he  had  incurred  the  ill-will  of  his  moth- 
er-in-law, who  had  previously  promised  him  £100,  held 
that  no  cause  of  action  was  shown.4  Where  the  plaintiff 
alleged  that  her  brother  had  promised  to  supply  her  with 
the  means  to  emigrate  from  Ireland,  but  in  consequence  of 
the  defendant's  imputation  her  brother  had  retracted  his 
promise  until  the  truth  of  the  charge  was  established  or 
refuted,  this  was  held  to  constitute  special  damage,  and 
that  it  was  not  necessary  to  allege  that  there  was  any  con- 


belief  of  the  party  is  at  all  material.  I  may  not  believe  a  charge,  and  yet  I  may  not 
have  the  courage  to  keep  a  person  who  is  suspected  by  others.  I  think  it  better  that 
we  shoidd  lay  it  down  generally,  that  if  the  words  are  slanderous,  and  are  acted  upon 
to  the  prejudice  of  the  party  slandered,  an  action  may  be  maintained.  (Id.)  To  the 
like  effect  see  Gillett  v.  Bullivant,  1  Law  Times,  490.  Contra  is  a  dictum,  Wilson  v. 
Goit,  \1  N.  Y.  445.  An  action  of  slander  *  *  would  plainly  be  perverted  if  allowed 
where  the  slanderous  words  were  not  credited  by  any  individual. 

1  Randle  v.  Beal,  Cro.  Jac.  413  ;  Salter  v.  Browne,  Cro.  Car.  436. 

'  Barnes  v.  Bruddell,  2  Keb.  451 ;  s.  c.  1  Lev.  261. 

8  Bracebridge  v.  Watson,  Lilly  Ent.  61. 

4  Harris  v.  Torter,  Curt.  1. 

20 


298  WHAT   LANGUAGE   IS   ACTIONABLE        [Ch.  VIIL 

sideration  for  tlie  "brother's  promise.1  Where  the  injury 
to  the  plaintiff  is  the  result  in  part  only  of  the  defend- 
ant's act,  subject  to  the  qualifications  hereafter  to  be  men- 
tioned, it  will  not  give  a  right  of  action  against  the  defend- 
ant; thus,  where  the  plaintiff  was  discharged  from  his 
employment  partly  on  account  of  the  publication  by  the 
defendant  and  partly  from  other  causes,  it  was  held  that 
the  plaintiff  could  not  recover.2  And  where  the  plaintiff 
alleged  that  in  consequence  of  the  words  he  (the  plaintiff) 
refused  to  marry  his  betrothed,  and  so  he  lost  his  mar- 
riage, it  was  held  the  loss  of  marriage  did  not  under 
such  circumstances  constitute  special  damage.3  Where 
the  plaintiff  alleged  that  by  reason  of  the  language  pub- 
lished by  the  defendant  all  honest  persons  refused  to 
many  their  daughters  to  him  (the  plaintiff),  held  that  the 
plaintiff  did  not  disclose  a  cause  of  action.4  As  the  law 
gives  no  remedy  for  outraged  feelings  or  sentiments  (§  56), 
a  sickness  induced  by  mental  distress  in  consequence  of 
the  language  published,  followed  by  inability  to  transact 
business  and  expense  for  medical  attendance,  does  not 
constitute  special  damage,  and  for  words  not  actionable 
per  se  which  occasion  such  results,  no  action  can  be  main- 
tained.5    If,  after  a  recovery  has  been  had  in  an  action  for 


1  Corcoran  v.  Corcoran,  7  Ir.  L.  R.  N.  S.  272. 

s  Vickars  v.  Wilcocks,  S  East,  1 ;  2  Stark.  Ev.  637. 

8  Carter  v.  Smith,  Via  Abr.  Act.  for  Words,  D.  a.  10. 

4  Norman  v.  Simons,  Via.  Abr.  Act.  for  Words,  D.  a.  12. 

8  Terwilliger  v.  Wands,  17  N.  Y.54;  "Wilson  v.  Goit,  17N.Y.442;  Alsop  v.  Alsop, 
5  Hurl.  &  Nor.  534  ;  Bedell  v.  Powell,  13  Barb.  183.  These  decisions  overrule  Brandt 
v.  Towsley,  13  Wend.  253;  Fuller  v.  Fenner,  16  Barb.  333;  Olmstead  v.  Brown,  12 
Barb.  657 ;  Underbill  v.  Welton,  32  Verm.  (3  Shaw),  40.  That  plaintiff  was  shunned 
by  her  neighbors,  and  turned  out  of  the  moral  reform  society,  was  held  not  to  consti- 
tute special  damage.  (Beach  v.  Ranney,  2  Hill,  309 ;  and  see  ante,  note  2,  p.  294.) 
Loss  of  a  wife's  services  from  illness  occasioned  by  the  publication  of  language  not 
actionable  per  se,  is  not  special  damage,  so  as  to  give  a  right  of  action  to  the  husband. 
(Wilson  v.  Goit,  17  N.  Y.  442 ;  Alsop  v.  Alsop,  5  H.  cfc  N.  534  ;  29  L.  J.  Ex.  315 ;  and 
see  Guy  v.  Gregory,  9  Car.  <fe  P.  584 ;  Beach  v.  Ranney,  2  Hill,  309.)  In  an  action 
by  husband  and  wife,  for  words  of  the  wife  actionable  per  se,  the  plaintiff  cannot 
recover  as  special  damage  loss  occasioned  by  one  refusing  to  employ  his  wife  as  a 


§    201.]  WITH   SPECIAL   DAMAGE.  299 

slander  or  libel,  special  damage  occurs,  no  action  can  be 
maintained  therefor;  the  first  recovery  is  a  bar  to  any 
subsequent  action.1 

§  201.  It  has  been  very  generally  reputed  and  ac- 
cepted for  law,  that  the  illegal  act  of  a  third  party  cannot 
constitute  special  damage ; 2  in  other  words,  that  one  illegal 
(wrongful)  act  cannot  be  a  natural  and  proximate  conse- 
quence of  another  illegal  (wrongful)  act.  This  idea 
appears  very  frequently  in  the  reports,  in  the  expression 
that  special  damage  must  be  the  natural  and  legal  conse- 
quence of  the  act  complained  of.  The  case  usually  re- 
ferred to  in  support  of  this  proposition  is  one  in  which 
the  defendant  falsely  asserted  that  plaintiff  had  cut  his 
master's  cordage,  in  consequence  of  which  the  plaintiff's 
master,  although  under  a  binding  contract  to  employ  him 
for  a  term  which  had  not  then  expired,  discharged  him,  it 
was  held  the  plaintiff  could  not  recover ;  that  such  dis- 
charge did  not  constitute  special  damage,  because  it  was 
not  a  natural  and  legal  consequence  of  the  publication; 
that  the  defendant  was  no  more  answerable  for  the  dis- 
charge than  if  in  consequence  of  the  words  spoken  other 
persons  had  assaulted  the  plaintiff;  and  that  if  in  such  a 
case  plaintiff  could  recover,  for  the  refusal  of  a  third 
person  to  perform  his  legal  contract,  he  might  twice 
recover  for  the  same  cause — once  in  the  action  for  the 
slander,  and  again  in  an  action  against  the  third  person 
for  the  breach  of  his  contract.3    It  was  sivfficient  to  sustain 


servant.   That  is  damage  for  which  the  husband  alone  must  sue.    (Dengate  v.  Gardiner, 
4  M.  &  W.  5.) 

1  Bull.  N.  P.  1,  citing  Fittler  v.  Veal,  Cas.  K.  B.  542  ;  Cooke  Defam.  21. 

2  Bentley  v.  Reynolds,  1  McMullin,  16. 

3  Vickars  v.  Wilcocks,  8  East,  1.  This  is  one  of  the  cases  selected  by  Mr.  Smith 
as  a  leading  case,  and  appears  with  an  elaborate  note  in  2  Smith's  Leading  Cases. 
This  case  is  commented  upon  in  a  note,  1  Starkie  on  Slander,  207.  Similar  to  Vickars 
v.  "Wilcocks  is  Morris  v.  Langdale,  2  Bos.  &  Pul.  289,  where  Lord  Eldon,  Ch.  J.,  said  : 
"A  great  part  of  the  special  damage  consists  in  an  allegation  that  other  persons  did 
not  perform  their  lawful  contracts  with  him.     Now,  if  the  plaintiff  has  sustained  any 


300  WHAT   LANGUAGE   18   ACTIONABLE        [Ch.  Vlil. 

this  decision  that  the  discharge  was  not  a  natural  conse- 
quence of  the  publication ;  the  residue  of  the  decision  is 
obiter,  and  is  not  sustainable  either  on  principle  or  pre- 
cedent. Subsequently,  in  an  action  for  words  whereby 
one  who  was  under  a  contract  to  marry  the  plaintiff, 
broke  his  contract  and  refused  to  marry  her,  it  was  urged 
against  the  maintenance  of  the  action  that  the  plaintiff 
had  her  remedy  on  the  contract  to  marry  her,  that  the 
breach  of  the  contract  was  an  illegal  act  of  the  contract- 
ing party,  and  that  the  breach  of  said  contract  was  not 
special  damage,  because  not  a  legal  consequence  of  the 
publication,  but  the  action  was  sustained.1  These  de-  . 
cisions,  although  apparently  conflicting,  are  not  so  in 
reality ;  for  obviously  an  illegal  act,  equally  with  a  legal 
act,  may  be  the  natural  consequence  of  a  publication,  and 
where,  as  in  the  case  of  a  promise  to  marry,  the  breach  of 
it,  although  illegal,  is  nevertheless  a  natural  consequence 
of  the  publication,  in  that  case  the  illegal  act  constitutes 
special  damage;  but  where  the  breach  of  a  contract  is 
not  a  natural,  or,  if  a  natural,  is  not  a  proximate  conse- 
quence of  the  publication,  in  such  a  case,  the  breach  of 
contract  does  not  constitute  special  damage,  not  because 
such  breach  is  an  illegal  act,  but  because  it  is  not  a 
natural  and  proximate  consequence  of  the  publication.2 
Where  the  defendant  published  language  concerning  one, 
an  actress,  in  the  employ  of  another,  the  proprietor  of  a 


damage  in  consequence  of  the  refusal  of  any  persons  to  perform  their  lawful  contracts 
with  him,  it  is  damage  which  may  be  compensated  in  action  brought  by  the  plaintiff 
against  those  persons;  and  the  law  supposes  that,  in  such  actions,  the  plaintiff  would 
receive  a  full  indemnity."  The  authority  of  both  these  cases  has  been  very  much 
questioned,  see  Collins  v.  Cave,  4  Hurl.  <fc  X.  225;  G  id.  131;  Walker  v.  Goe,  3  id. 
395;  4  id.  351 ;  Green  v.  Button,  2  Cr.  M.  &  R.  707. 

1  Moody  v.  Baker,  5  Cow.  351. 

4  There  are  many  cases  where  a  recovery  has  been  had  for  illegal  acts  of  third 
persons  induced  by  the  defendant's  act,  as  for  preventing  workmen  from  continuing 
their  work,  enticing  away  wives,  servants,  apprentices,  or  tenants,  &c.  See  in  note 
p.  58,  ante,  and  Green  v.  Button,  2  Cr.  M.  &  R.  707;  Lumley  v.  Gye,  2  Ell.  <fc  Black. 
216.     See  §  206,  post. 


§    202.]  WITH    SPECIAL   DAMAGE.  301 

theatre,  in  consequence  of  which  such  employee  refused 
to  fulfill  her  engagement  with  her  employer  (the  plaintiff), 
and  whereby  the  plaintiff,  as  he  alleged,  lost  profits  in  his 
business,  it  was  held  that  the  action  could  not  be  main- 
tained.1 That  the  damages  were  too  remote  is  usually 
assigned,  and  is  one  of  the  expressed  grounds  for  the 
decision ;  another  and  a  sufficient  ground  would  be,  that 
her  refusal  to  fulfill  her  engagement  was  not  a  natural 
result  of  the  publication. 

§  202.  Ordinarily  the  repetition  (§  112)  of  defama- 
tory language  by  another  than  the  first  publishei  is  not  a 
natural  consequence  of  the  first  publication,  and  therefore 
except  under  circumstances  to  be  presently  referred  to, 
the  loss  resulting  from  the  repetition  of  defamatory  lan- 
guage does  not  constitute  special  damage,  and  is  not 
attributable  to  the  first  publisher.2  Thus  where  it  was 
alleged  that  defendant  said  of  plaintiff,  "  He  is  a  rogue 
and  a  swindler ;  I  know  enough  about  him  to  hang  him," 
and  it  was  alleged  as  sj)ecial  damage  that  one  B.  who  was 
about  to  sell  goods  to  plaintiff  on  credit  had  by  reason  of 
defendants  representation  refused  to  trust  plaintiff;  on  the 
trial  the  proof  was  that  defendant  spoke  the  words  to  one 
C,  who  repeated  them  to  B.,  and  that  it  was  in  conse- 
quence of  that  repetition,  and  nothing  else,  that  B.  re- 
fused to  trust  plaintiff,  it  was  held  the  defendant  was  not 
liable  for  the  consequences  of  the  repetition,  and  that  the 
plaintiff  could  not  recover.3     In  Perkins  v.  Scott,  the  de- 

1  Ashley  v.  Harrison,  1  Peake's  Cas.  194.  In  an  action  for  fraudulently  selling 
plaintiff  diseased  sheep,  held  it  was  not  special  damage  that  in  consequence  of  a 
report  that  plaintiff  had  purchased  defendant's  diseased  sheep,  one  A.  refused  to  com- 
plete a  contract  he  had  with  plaintiff  for  a  supply  of  meat,  or  that  plaintiff's  custom- 
ers had  left  him.  (Crain  v.  Petrie,  6  Hill,  523.)  See  observations  in  Kendall  v. 
Stone,  5  N.  Y.  20,  and  note  to  §  206,  post. 

s  Stevens  v.  Hartley,  11  Mete.  542;  Olmstead  v.  Brown,  12  Barb.  65"7;  Keenholts 
v.  Becker,  3  Denio,  346;  Terwilliger  v.  Wands,  17  N.  Y.  58;  Dixon  v.  Smith,  5  Hurl. 
&  X.  450;  Barnett  v.  Allen,  1  Fost.  &  F.  125,  and  note  1,  p.  148,  ante. 

3  Ward  v.  Weeks,  7  Bing.  211.   The  decision  seems  to  have  been  put  on  the  ground 


302  WHAT   LANGUAGE   IS   ACTIONABLE        [Ch.  VIII. 

fendant  charged  Mrs.  Perkins  with  adultery ;  she  commu- 
nicated this  fact  to  her  husband,  and  he  in  consequence 
refused  to  cohabit  with  her.1  It  was  held  that  no  action 
could  be  maintained,  for  although  loss  of  consortium  of 
husband  or  wife  may  constitute  special  damage  (§  198) 
yet  under  the  circumstances  the  defendant  was  not  liable. 
In  some  instances  the  circumstances  of  the  case  may  be 
such  as  render  the  repetition  of  the  language  by  another 
than  the  first  publisher  a  link  in  the  chain  of  natural  con- 
sequences of  the  first  publication,  and  the  loss  by  such 
repetition  to  the  person  whom  the  language  concerns  a 
natural  and  proximate  consequence  of  the  first  publica- 
tion, and  therefore  special  damage  for  which  the  first  pub- 
lisher is  responsible.  Where  a  police  magistrate,  after 
disposing  of  a  charge  before  him,  said  to  a  police  officer 
(the  plaintiff)  who  had  been  examined  as  a  witness  in 
the  matter,  that  he  was  not  to  be  believed,  and  this  being 
heard  by  another  officer  present  was  by  him  reported  to 
the  plaintiff's  employers,  the  police  commissioners,  and 
they  in  consequence  dismissed  the  plaintiff  from  their  em- 
ployment, it  was  held,  in  an  action  against  the  magistrate, 
that  such  dismissal  was  special  damage.2  Where  the 
plaintiff  was  governess  in  the  family  of  A.,  and  the  de- 
fendant published  language  to  the  plaintiff's  father  im- 
puting to  her  having  had  a  child  by  A.,  this  language  the 
plaintiff's  father  repeated  to  A.,  who  thereupon  dismissed 
her  from  his  service,  alleging  as  a  reason  that  although  he 

of  a  variance,  the  allegation  being  that  the  injury  was  in  consequence  of  a  publication 
by  the  defendant  and  the  proof  being  that  the  injury  was  in  consequence  of  a  publi- 
cation by  another.  Where  words  were  spoken  to  a  servant  of  the  plaintiff  imputing 
incontinence  to  the  plaintiff,  and  the  plaintiff  alleged  for  special  damages  that  in  con- 
sequence of  the  words  J.  S.  who  was  in  communication  of  marriage  with  her  refused 
to  marry  her,  the  plaintiff  failed  to  sustain  her  action,  because  the  words  were  not 
spoken  to  J.  S.  (Holwood  v.  Hopkins,  Cro.  Eliz.  787.)  In  Moody  v.  Baker,  5  Cow. 
351,  it  was  held  that  .the  declarations  of  the  man  that  be  was  not  influenced  in  his 
refusal  to  marry  by  the  words  published,  were  not  admissible. 

1  1  Hurl.  &  Colt.  153 ;  s.  c.  Perkins  v.  Scott,  6  Law  Times,  N.  S.  394. 

2  Kendillon  v.  Maltby,  1  Car.  &  Marsh.  402. 


§    202.]  WITH   SPECIAL    DAMAGE.  303 

knew  the  charge  to  be  false,  it  would  be  injurious  to  the 
plaintiff  and  would  be  unpleasant  both  to  the  plaintiff 
and  himself  A.  that  she  should  remain  in  his  family,  it 
was  held  that  the  dismissal  was  a  natural  consequence  of 
the  defendant's  first  publication,  for  which  he  was  liable.1 
And  so  where  the  plaintiff  was  a  clerk  in  the  employ  of 
C.  &  S.,  who  were  partners,  and  the  defendant,  a  former 
employer  of  plaintiff,  published  to  C,  one  of  said  part- 
ners, language  imputing  dishonesty  to  the  plaintiff,  this 
language  C.  rej)eated  to  S.,  his  partner,  and  it  was  held 
the  defendant  was  liable  for  the  consequences  of  the  repe- 
tition.2 In  each  of  the  two  cases  lastly  referred  to,  the 
court  evidently  having  in  view  the  supposed  rule  of  law 
above  referred  to  (§  201),  that  special  damage  must  be  a 
legal  consequence  of  the  act  complained  of,  lays  a  marked 
stress  upon  the  fact  that  the  repetition  was  privileged, 
that  is  to  say  that  the  father  in  the  one  case  and  the  em- 
ployer and  partner  in  the  other,  was  justified  in  making 
the  repetition,  and  that  in  neither  case  could  the  plaintiff 
have  maintained  an  action  against  the  one  making  the 
repetition,  and  the  whole  tenor  of  these  decisions  lead  to 
the  inference  that  unless  the  repetition  had  been  justifiable 
as  regards  the  person  making  it,  the  defendant  would  not 
have  been  responsible  for  its  consequences.3  The  repeti- 
tions, however,  were  justifiable  only  in  part ;  they  were 
justifiable  as  to  the  persons  making  them,  but  not  as  to 
the  first  publisher;  they  illustrate  the  principle  (§§  67, 
121)  that  the  actual  publisher  may  not  be  liable,  while 
another,  not  the  actual  publisher,  is  liable.     In  the  case  of 


1  Gillett  v.  Bullivant,  7  Law  Times,  490,  and  see  Derry  v.  Handley,  16  Law  Times 
N.  S.  263;  ante,  §  114,  and  note  2,  p.  296,  ante. 

a  Fowles  v.  Bowen,  30  N.  Y.  22. 

3  "  Occasions  may  doubtless  occur  where  the  communication  of  slanderous  words 
by  a  person  who  heard  them  will  be  innocent;  and  it  is  certainly  reasonable  that 
when  repeated  on  such  an  occasion  and  damages  result,  the  first  speaker  should  be 
held  responsible  for  the  damages  as  flowing  directly  and  naturally  from  his  own 
wrong."     (Terwilliger  v.  Wands,  17  N.  Y.  58,  cited  Fowles  v.  Bowen,  30  N.  Y.  22.) 


304  WHAT   LANGUAGE   IS   ACTIONABLE         [Cll.  VIII. 

"Ward  v.  Weeks,  above  referred  to,  the  court  dwelt  on  the 
fact  that  the  defendant  had  not  requested  the  person  to 
whoni  he  made  the  publication  to  repeat  the  language,  inti- 
mating, indirectly  at  least,  that  if  the  defendant  had  made 
such  a  request  he  would  have  been  liable  for  the  repeti- 
tion; most  probably  that  would  have  been  the  result,1 
but  such  a  request  would  not  have  justified  the  repetition 
(§  67).  It  seems  plain,  therefore,  that  it  is  not  the  fact  of 
the  repetition  being  or  not  being  justifiable  that  deter- 
mines the  liability  of  the  first  publisher,  but  the  test  in 
every  case  must  be  whether  or  not  the  repetition  was  a 
natural  consequence  of  the  first  publication.  It  was  natu- 
ral and  to  be  expected  that  a  father,  when  told  of  the 
seduction  of  his  daughter,  should  seek  out  the  supposed 
seducer  and  tax  him  with  his  offense ;  it  was  natural  and 
to  be  expected  that  a  partner,  when  informed  that  one  in 
the  employ  of  himself  and  partner  was  dishonest,  should 
communicate  the  information  to  his  copartner,  therefore  it 
was  that  in  both  cases  the  first  publisher  was  held  to  be 
liable  for  the  repetition.  Nor  is  there  any  inconsistency 
between  these  decisions  and  the  decision  in  Perkins  v. 
Scott,  guprtij  for  in  that  case  although  the  repetition  by  the 
wife  to  her  husband  was  a  natural  result  of  defendant's 
act,  yet  the  husband's  refusal,  on  that  account,  to  consort 
with  his  wife  was  not  a  natural  consequence  of  the  repeti- 
tion. The  husband  being  the  legal  protector  of  his  wife, 
the  natural  consequences  of  her  appeal  to  him  would 
have  been  not  to  aggravate  but  to  seek  to  redress  her 
injury.  The  husband's  desertion  of  the  wife  was  not, 
therefore,  under  the  circumstances,  a  natural  consequence 
of  the  defendant's  act.  There  was  this  additional  diffi- 
culty in  the  way  of  a  recovery  in  that  action :  the  damage 
for  which  the  plaintiff  sought  compensation  was  really 
done  by  himself. 

1  Keenholts  v.  Becker,  3  Denio,  346. 


§§  203-4.]  CONCERNED   THINGS.  305 

§  203.  We  have  already  (§  130)  adverted  to  a  distinc- 
tion between  language  concerning  a  person  and  language 
concerning  a  thing.  Thus  far,  in  this  chapter,  we  have 
confined  ourselves  exclusively  to  language  concerning  a 
person ;  our  present  business  is  with  language  concerning 
things.  As  respects  language  concerning  things,  no  such 
distinction  exists  between  the  effect  of  oral  and  written 
language,  as  is  maintained  with  respect  to  language  con- 
cerning persons  (§  18).  By  things  we  intend  whatever 
is  external  to  the  person ;  therefore,  as  here  used,  things 
include  whatever  one  may  or  may  be  entitled  to  own, 
possess,  or  enjoy;  also,  his  actions  and  creations. 

§  204.  As  a  thing  has  no  rights,  and  as  no  one  owes 
any  duty  to  a  thing  (§  38),  no  wrong  can  be  done  to  a 
thing,  and  language  which  merely  concerns  and  affects  a 
thing  cannot  be  actionable.  In  other  words,  one  may,  in 
good  faith,  speak  or  write  whatever  he  may  please  con- 
cerning a  thing,  and  with  any  intention  towards  the  thing, 
and  for  such  speaking  or  writing  no  action  can  be  main- 
tained. The  thing  cannot  complain;  it  has  no  right 
which  can  be  invaded.  But  although  things  have  no 
rights,  persons  may  have  a  right  in  or  to  a  thing,  the  right 
of  property,  and  this  right  may  be  invaded  by  language 
concerning  the  thing.  When  this  invasion  occurs,  the 
language  which  affects  a  thino-  is  actionable.  A  loss  of  or 
injury  to  the  property  is  not  an  invasion  of  the  right  of 
property,  unless  the  loss  is  occasioned  by  a  wrongful  act 
(§§  48,  49).  A  loss  occasioned  by  a  lawful  act  does  not 
amount  to  a  wrong,  and  does  not  confer  a  right  of  action 
(§  62).  Where,  therefore,  by  reason  of  an  exercise  of  the 
right  of  speech  or  of  writing  concerning  a  thing,  the 
owner  of  the  thing  sustains  a  loss,  he  cannot  have  any 
redress  therefor,  as  no  wrong  has  been  done.  Thus  an 
action  cannot  be  maintained  by  a  manufacturer  or  dealer 
for  language  charging  that  the  article  he  manufactures,  or 


306  WHAT   LANGUAGE   IS   ACTIONABLE        [Ch.  VIII. 

in  which  he  deals,  is  not  a  good  article,  or  is  a  bad  article, 
or  is  not  so  good  as,  or  is  inferior  to,  an  article  manufac- 
tured or  sold  by  some  other  person.1  But  rights  must  be 
exercised  in  good  faith :  bad  faith  in  an  act  done  in  the 
assumed  exercise  of  a  right  makes  the  act  wrongful 
(§§  40,  42).  Good  faith,  in  this  connection,  means  an 
honest  belief  in  the  truth  and  fitness  for  the  occasion  of  the 
matter  published,  and  bad  faith  is  the  converse  of  this ; 
namely,  the  absence  of  such  honest  belief,  or  the  disbelief 
in  the  truth  and  fitness  for  the  occasion  of  the  matter 
published.  As,  then,  the  existence  of  this  belief  or  of 
this  disbelief  determines  whether  the  publication  was  or 
was  not  made  with  a  legal  excuse,  it  becomes  necessary 
to  ascertain  the  belief  of  the  publisher ;  and  this  involves 
the  question  of  his  intent  in  making  the  publication. 
Not  as  already  exjxlained  (§§  90,  91),  because  the  intent 
is  essential  to  constitute  a  cause  of  action,  but  because  it 
is  a  link  in  the  chain  of  evidence  of  the  existence  or  of 
the  absence  of  a  legal  excuse.  Proof  that  the  publisher, 
while  pretending  to  exercise  the  right  of  speaking  or 
writing  concerning  a  thing,  was  in  reality  designing  and 
intending  to  injuriously  affect  the  owner  of  the  thing, 
while  it  would  not  of  itself  constitute  bad  faith,  would 
be  a  circumstance  from  which  bad  faith  might  properly 
be  inferred.  Although  the  language  concerns  only  a 
thing,  yet  if  it  appears  to  have  been  published  without 
lawful  excuse,  i.  e.  maliciously  (§  91),  it  will  be  actionable 
if  pecuniary  loss  is  a  necessary  or  natural  and  proximate 
consequence  of  the  publication,  and  hence  we  may  deduce 
this  rule,  that  language  concerning  a  thing  is  actionable 
when  published  maliciously,  i.  e.  without  lawful  excuse 
(§  91),  if  it  also  occasions  damage  to  the  owner  of  the 
thing  (§  146).2 

1  Tobias  v.   Harland,  4  Wend.  537 ;  Young  v.  McCrae,  3  Best  &  Sm.  264 ;  1  Law 
Times,  N.  S.  354;  Carr  v.  Duckett,  5  Hurl.  &  N.  783. 

3  "  I   am   far  from   saying  if  a  man  falsely  and  maliciously  makes  a  statement 


205.] 


CONCERNING  THINGS.  307 


§  205.  Malice  and  damage  are  both  essential  requisites 
to  sustain  an  action  for  language  concerning  a  tiling.  To 
these  requisites  is  usually  added  a  third,  that  the  language 


disparaging  an  article  which  another  manufactures  or  vends  (although  in  so  doing 
he  casts  no  imputation  on  his  personal  or  professional  character),  and  thereby  causes 
an  injury  and  special  damage  is  averred,  an  action  might  not  be  maintained." 
(Cockburn,  C.  J.,  Young  v.  McCrae,  3  Best  &  Sm.  264.) 

In  Swan  v.  Tappan,  5  Cush.  105,  the  words  were  "alleged  to  be  of  and  concerning 
the  plaintiff's  books,"  and  nothing  else,  without  any  allegation  of  special  damage. 
The  action  was  held  not  maintainable,  but  the  court  intimated  that  if  special  damage 
had  been  alleged  the  action  could  have  been  sustained.  In  Ingram  v.  Lawson  (6 
Bing.  N.  C  212;  8  Scott,  4*71),  it  was  held  that  the  language  was  concerning  the 
plaintiff  personally,  but  that  if  the  language  had  been  concerning  the  plaintiff's  ship, 
the  action  could  have  been  maintained  if  special  damage  had  been  alleged.  And  as 
to  words  reflecting  on  a  steamboat,  see  Hamilton  v.  Walters,  4  Up.  Can.  Q.  B.  Rep. 
O.  S.  24,  and  in  Yates'  Pleadings  and  Forms,  p.  436,  is  the  form  of  a  plea  to  a 
declaration  for  slander  of  the  plaintiff's  ship.  In  Young  v.  McCrae  (3  Best  &  Sm.  264), 
Cockburn,  J.,  observed  :  "  I  am  far  from  saying  there  can  be  no  action  for  a  false 
reflection  on  goods.  Such  an  action,  however,  would  be  more  in  the  class  of  actions 
for  false  representations  than  actions  of  libel."  An  intentional  false  statement  by 
defendant  in  regard  to  articles,  manufactured  by  plaintiff,  for  the  purpose  of  pre- 
venting sales,  by  plaintiff,  of  such  articles,  and  thereby  preventing  such  sales, 
constitutes  a  cause  of  action.     (Snow  v.  Judson,  38  Barb.  212,  citing  Benton  v.  Pratt, 

2  Wend.  385;  White  v.  Meriitt,  7  N.  Y.  352;  Gallager  v.  Brunei,  6  Cowen,  346.) 

A  declaration  for  libel  stated  that  the  plaintiff,  before  and  at,  &c,  carried  on  the 
business  of  an  engineer,  and  was  the  inventor  and  registered  proprietor  (under  2  & 

3  Vict.,  c.  17)  of  an  original  design  for  making  impressions  on  metal  articles,  and 
sold  divers  articles  on  which  the  design  was  used.  That  plaintiff,  before  and  at,  &c, 
had  sold  and  had  on  sale  in  the  way  of  his  said  trade,  articles  and  goods  called 
"  self-acting  tallow  syphons,  or  lubricators,"  and  that  defendant  published  a  libel  of 
and  concerning  plaintiff,  and  of  and  concerning  him  in  his  said  trade,  and  of  and 
concerning  said  design,  and  j>Iaintiff  as  the  inventor,  &c,  thereof,  and  manufacturer 
of  the  articles  with  the  said  design  thereon,  and  of  and  concerning  the  said  goods 
which  he  had  so  sold  and  had  on  sale,  and  plaintiff  as  the  seller,  as  follows :  "  This  is 
to  caution  parties  employing  steam  power,  from  a  person"  (meaning  plaintiff)  "  offer- 
ing what  he  calls  self-acting  tallow  syphons  or  lubricators "  (meaning  said  design, 
and  meaning  said  goods  and  articles  which  he,  plaintiff,  had  so  sold  and  had  on  sale 
as  aforesaid),  "  stating  that  he  is  the  sole  inventor,  manufacturer,  and  patentee,  there- 
by monopolizing  high  prices  at  the  expense  of  the  public."  R.  Harlow  (meaning 
defendant),  "  takes  this  opportunity  of  saying,  that  such  a  patent  does  not  exist,  and 
that  he  has  to  offer  an  improved  lubricator,"  &c.  "  Those  who  have  already  adopted 
the  lubricators,"  (meaning,  &c,  same  innuendo  as  before),  "  against  which  It.  II. 
would  caution,  will  find  that  the  tallow  is  wasted  instead  of  being  effectually  em- 
ployed as  professed."  No  direct  averment  connected  the  tallow  syphon  with  the 
registered  design  mentioned  in  the  first  part  of  the  inducement.  No  special  damage 
was  alleged.  Held,  that  the  words  were  not  a  libel  on  the  plaintiff,  either  generally 
or  in  the  way  of  his  trade,  but  were  only  a  reflection  upon  the  goods  sold  by  him, 


30,8  WHAT    LANGUAGE   IS    ACTIONABLE.       [Ch.  VHI. 

must  be  false.  It  is  true  the  language  must  be  false,  not 
because  it  is  an  additional  requisite  to  malice  and  dam- 
age, but  because  it  is  comprised  in  the  requirement  of 
damage.  Language  concerning  a  thins;  which  is  not  false, 
i.  e.  which  is  true,  cannot,  as  a  necessary  or  natural  con- 
sequence, occasion  pecuniary  loss.  Language  concerning 
a  thing  is  prima  facie  or  presumptively  lawful;  and, 
therefore,  with  regard  to  it7>  there  is  neither  any  assump- 
tion or  presumption  of  its  being  untrue  or  false,  nor  of 
its  occasioning  damage,  nor  of  its  being  without  lawful 
excuse  (malicious)  (§  130);  and  therefore  it  is,  that  one 
complaining  of  an  injury  by  reason  of  language  concern- 
ing a  thing,  in  order  to  establish  his  right  to  maintain  an 
action,  has  to  allege  and  prove  that  the  publication  was 
made  without  lawful  excuse  (maliciously),  that  the  lan- 
guage was  untrue,  and  that  he  has  sustained  pecuniaiy 
loss  as  a  necessary  or  as  a  natural  and  proximate  con- 
sequence of  the  publication. 

which  was  not  actionable  without  special  damages.  (Evans  v.  Harlow,  5  Q.  B.  624.) 
See  post,  note  5,  p.  316. 

Publishing  of  a  newspaper  that  it  was  a  vulgar,  ignorant,  and  scurrilous  journal, 
was  held  not  actionable,  but  it  was  held  actionable  to  say  that  it  was  low  in  circula- 
tion— such  a  charge  being  calculated  necessarily  to  produce  damage.  (Heriot  v. 
Stuart,  1  Esp.  Cas.  437.)  See  Latimer  v.  "West.  Morning  Xews  Co.,  25  Law  Times,  X. 
S.  44. 

Plaintiff  was  possessed  of  certain  shares  in  a  silver  mine,  touching  which  shares 
certain  claimants  had  filed  a  bill  in  chancery,  to  which  plaintiff  had  demurred. 
Held,  that,  without  alleging  special  damage,  plaintiff  could  not  sue  the  defendant  for 
falsely  publishing  that  the  demurrer  had  been  overruled ;  that  the  prayer  of  the 
petition  (for  the  appointment  of  a  receiver)  had  been  granted,  and  that  persons  duly 
authorized  had  arrived  at  the  mine.  Held,  also,  that  an  allegation  that  the  plaintiff 
was  injured  in  his  rights,  that  the  shares  were  lessened  in  value,  that  divers  persons 
believed  that  he  had  no  right  to  the  shares,  that  the  mine  could  not  be  worked,  and 
that  he  had  been  prevented  from  disposing  of  his  said  shares,  and  from  working  the 
mine  in  so  ample  a  manner  as  he  otherwise  would  have  done,  and  was  prevented 
from  gaining  divers  profits  which  would  otherwise  have  accrued  to  him,  was  not  a 
sufficient  special  damage.     (Malachy  v.  Soper,  3  Bing.  N.  C.  371;  3  Scott,  723.) 

In  an  action  for  misdescribing  the  plaintiff's  vessel  in  a  publication  of  the 
defendants,  called  "  The  Shipping  Piegister,"  it  appearing  that  the  plaintiffs  had 
requested  the  surveyor  of  the  defendants  to  examine  the  ship,  held  that  they  could 
maintain  no  action  against  them  for  what  the\T  did  in  consequence  of  his  report,  the 
remedy  was  against  him  if  he  made  a  false  report.  (Kerr  v.  Shedden,  4  C.  &  P.  528.) 

The  foregoing  cases  seem  to  imply  that  the  fact  of  loss,  or  special  damage,  as  it  is 


§  206.]  SLANDER    OF    TITLE.  309 

§  206.  What  is  ordinarily  designated  slander  of  title, 
is  comprised  within  the  division  of  language  concerning 
things.  Slander  of  title  is  publishing  language,  not  of 
the  person,  but  of  his  right  or  title  to  something.  All 
the  preceding  observations  upon  language  concerning 
things  apply  to  actions  for  slander  of  title ;  thus,  in  an 
action  for  slander  of  title,  no  distinction  is  made  with 
regard  to  the  medium  of  the  publication,  as  whether  oral 
or  written;1  and  to  sustain  the  action,  the  publication 
must  be  made  maliciously;  the  language  must  be  false, 
and  must  occasion,  as  a  natural  and  proximate  conse- 
quence, a  pecuniary  loss,  i.  e.  special  damage  to  the  plaint- 
iff.2 The  special  damage3  usually  consists  in  losing  the 
sale  of  the  property  in  question.  This  damage  can  occur 
only  in  the  cases  where  no  contract  to  sell  exists,  i.  e.  to 
cases  where  one  is,  by  the  language  published,  deterred 
from  making  a  purchase,  or  entering  into  a  contract  to 

termed,  will  render  actionable  language  concerning  a  thing ;  we  state  it  otherwise  in 
the  text,  and  we  suppose  it  to  be  otherwise.  In  Carr  v.  Hood,  1  Camp.  355,  n.,  Lord 
Ellenborough,  speaking  of  language  concerning  a  thing  (a  book),  says:  "  I  speak  of 
fair  and  candid  criticism ;  this  every  one  has  the  right  to  publish,  although  the  author 
may  suffer  los3  from  it.  Such  a  loss  the  law  does  not  consider  as  an  injury,  because 
it  is  a  loss  which  the  party  ought  to  sustain." 

This  subject  is  further  considered  under  the  head  of  Defenses,  §  254. 

'Malachy  v.  Soper,  3  Bing.  N.  C.  371  ;  3  Scott,  723. 

*  Kendall  v.  Stone,  5  N.  Y.  14,  rev'g  s.  c.  2  Sandf.  269  ;  Like  v.  McKinstry,  41 
Barb.  186;  aff'd  4  Keyes,  39*7.  There  must  be  malice  which  the  plaintiff  must 
prove.  (Smith  v.  Spooner,  3  Taunt.  246;  Hill  v.  Ward,  13  Ala.  310;  Stark  v.  Chet- 
wood,  5  Kansas,  141.)  Malice  is  not  to  be  presumed.  (McDaniel  v.  Baca,  2  Gal. 
326.)  There  must  be  malice  either  express  or  implied.  (Hargrave  v.  Le  Breton,  4 
Burr.  2422.)  But  all  malice  is  implied.  (§  87,  ante.)  To  support  an  action  for 
slander  of  title,  special  damages  must  be  shown.  (Bailey  v.  Dean,  5  Barb.  297  ; 
Linden  v.  Graham,  1  Duer,  670 ;  Watson  v.  Reynolds,  1  Mo.  &  Malk.  1  ;  Paull  v. 
Halferty,  63  Penns.  46,  and  note  2,  p.  315,  post.)  There  must,  too,  be  a  want  of  probable 
cause;  and,  if  what  the  defendant  said  or  did,  was  in  pursuance  of  a  claim  of  title, 
for  which  he  has  some  ground,  he  is  not  responsible.  (Bailey  v.  Dean,  5  Barb.  297.) 
The  existence  of  probable  cause  is  no  answer  to  the  action,  nor  does  the  want  of  it 
necessarily  prove  malice.  (Kendall  v.  Stone,  2  Sand.  269.)  Mere  assertions,  threats, 
and  designs,  made  against  a  grantee  of  real  estate,  and  against  the  party  in  posses- 
sion, cannot  be  deemed  a  cloud  upon  the  title.  If  the  owner  is  injured  by  any  such 
false  claims  or  representations,  he  can  probably  maintain  an  action  for  damages.  (Re 
Madison  Ave.  Bapt.  Church,  26  How.  Pra.  R.  72.) 

'  Kendall  v.  Stone,  5  N.  Y.  14 ;  Paull  v.  Halferty,  63  Penns.  46. 


310  WHAT   LANGUAGE   IS   ACTIOXABLE.       [Ch.  VIII. 

purchase.  Where  a  contract  for  sale  and  purchase  has 
already  been  entered  into,  the  purchaser's  refusal,  on  ac- 
count of  any  statement  of  a  third  party,  to  complete  his 
contract,  would  not  in  an  action  against  such  third  party, 
for  making  such  statement,  constitute  special  damage  !  A 
man  may  refuse  to  bid  for  property  upon  which,  or  upon 
the  title  to  which,  an  imputation  rests,  such  refusal  is  a 
natural  consequence  of  the  imputation,  but  one  who  is 
already  under  a  contract  to  purchase  may  not  (has  not 
the  right  to),  by  reason  of  any  imputation  on  the  subject 
of  such  contract,  refuse  to  complete,  besides  that  his  re- 
fusal would  be  illegal,  it  would  not  be  a  natural  conse- 
quence of  the  imputation.  Perhaps  this  rale  is  applicable 
only  to  the  slander  of  title  to  real  estate,  and  in  the  cases 
where  the  title  is  capable  of  such  clear  proof  as  to  out- 
weigh any  imputation  against  it,  but  in  the  case  of  title 
to  personal  property  the  title  to  which  is  not  capable  of 
such  satisfactory  proof  as  is  the  title  to  real  property,  a 
different  rule  may  prevail,  for  in  such  a  case  it  would 
seem  to  be  but  a  natural  consequence  that  one  under  con- 
tract to  purchase  should  be  deterred  from  conrpleting  by 
reason  of  imputations  upon  the  seller's  title,  just  as  in  the 
case  of  the  contract  to  deliver  battens  the  seller  was  de- 
terred from  delivering  them  by  reason  of  the  defendant's 
claim  of  lien.1     (§  206&.) 

§  206a.  Where  the  assignee  of  a  lease  which  con- 
tained a  proviso  for  re-entry  in  case  the  rent  reserved  by 
it  was  in  arrear,  exposed  the  lease  for  sale,  there  being  at 
the  time  rent  in  arrear,  the  lessor  appeared  at  the  time 
and  place  appointed  for  the  sale,  and  announced  that  such 
assignee  had  no  title  and  could  not  make  a  title,  in  conse- 
quence of  which  announcement,  persons  who  came  to  bid 
for  the  lease  refused  to  bid ;  the  lessor  afterwards  offered 
<£100  for  the  lease,  which  was  refused ;  he  brought  eject- 

1  Green  v.  Button,  2  Cr.  M.  <fc  R.  707.     See  §  201,  ante. 


§  206ft.]  SLANDER    OF   TITLE.  311 

ment  and  recovered  the  possession  of  the  premises.     In- 
termediate the  attempted  sale  and  the  recovery  in  the 
ejectment,  the  assignee  sued  the  lessor  for  slander  of  title; 
the  court   on  the  trial  was  of  opinion  that,  under  the 
circumstances,  the  plaintiff  could  not  maintain  the  action, 
but  left  the  question  of  malice  in  making  the  publication 
to  the  jury,  and  they  found  that  it  was  malicious.     The 
court,  however,  directed  a  nonsuit.1     It  is  supposed  that 
the  nonsuit  was  set  aside,  and  that  the  plaintiff  had  judg- 
ment on  the  ground  that  the  question  of  malice  having 
been  left  to  the  jury  as  a  question  of  fact,  and  found 
against  the  defendant,  the  court  could  not  disregard  the 
finding  and  say  there  was  no  malice.2     The  defendant,  a 
surveyor  appointed   under   Stat.  7   and  8  Vict.,  ch.  84, 
attended  a  sale  of  some  unfinished  houses,  of  which  the 
plaintiff  was  the  lessee  for  a  term  of  years.     The  roadway 
to  these  houses,  although  of  sufficient  width  according  to 
the  above  statute,  was  at  that  time  in  an  unpaved  state 
and  unfit  for  traffic.     At  such  sale  the  defendant  made 
the   following   announcement:     "I   shall   not   allow   the 
houses  to  be  finished  until  the  roads  are  made  good.     I 
have  no  power  to  compel  any  one  to  make  the  roads,  but 
I  have  power  to  stop  the  buildings  until  the  roads  are 
made."     Some   time   after  such   sale,  the   defendant,   on 
being  asked  why  he  pursued  Mr.  Pater,  replied,  "  I  pursue 
Mr.  Pater  because  I  am  not  able  to  pursue  Mr.  Agar,  the 
ground  landlord."     Upon  this  state  of  facts,  held,  that 
there  was  no  evidence  to  support  the  allegation  of  malice.3 
Where  one  mortgaged  his  estate,  and  afterwards  commit- 
ted an  act  of  bankruptcy,  subsequently  the  property  was 


1  Smith  v.  Spooner,  3  Taunt.  246.  The  attorney  of  a  party  who  would  be  justified 
in  making  objections  to  a  title,  is  not  liable  to  an  action,  if  he  bond  fide,  though 
without  authority,  state  only  what  his  principal  might  have  stated.  (Watson  v.  Rey- 
nolds, 1  M.  &  Malk.  1.) 

9  1  Starkie  on  Slander,  318. 

8  Tater  v.  Baker,  11  Jurist,  370;  16  Law  Jour.  R.  124  C.  P. ;  3  C.  B.  831. 


312  WHAT   LANGUAGE   IS   ACTIONABLE.       [Ch.  VIII. 

offered  for  sale  by  the  assignee  of  the  mortgagor,  the 
defendant,  the  attorney  of  the  mortgagee,  stopped  the  sale 
by  stating  that  the  mortgagor  had  committed  an  act  of 
bankruj)tcy,  and  which  was  untrue,  that  a  docket  had 
been  out  for  a  commission,  in  an  action  for  losing  the  sale, 
held  that  although  the  defendant  went  beyond  the  truth, 
there  was  no  material  variance  and  no  difference  made 
with  respect  to  plaintiff's  title,  and  there  being  no  proof 
of  malice,  the  action  could  not  be  maintained.1  The 
plaintiff  being  about  to  sell  an  estate,  the  defendant  wrote 
a  letter  to  the  intending  purchaser,  imputing  insanity  to 
Y.,  the  person  from  whom  the  plaintiff  derived  his  title, 
and  stating  that  the  title  would  be  disputed;  in  conse- 
quence of  which  letter  the  proposed  purchaser  refused  to 
purchase.  It  appeared  on  the  trial  that  Y.  had  married  a 
sister  of  the  defendant,  and  that  a  term  of  years  in  the 
estate  in  question  was  vested  in  the  defendant  as  trustee, 
to  secure  a  jointure  to  Y.'s  wife.  The  judge  on  the  trial 
ruled  that  if  defendant  believed,  upon  such  grounds  as 
would  persuade  a  man  of  sound  sense  and  knowledge  of 
business,  that  Y.  was  insane,  the  defendant  would  be 
entitled  to  a  verdict.  A  verdict  was  taken  for  the  plain- 
tiff; the  court  above,  on  granting  a  new  trial,  condemned 
this  ruling  as  unsound,  and  stated,  "  If  what  the  defendant 
wrote  was  most  untrue,  but  nevertheless  he  believed  it,  if 
he  was  acting  under  the  most  vicious  of  judgments,  yet  if 
he  exercised  that  judgment  bond  fide,  it  was  a  sufficient 
justification.  *  *  The  jury  must  arrive  at  their  con- 
clusion through  the  medimn  of  malice  or  no  malice  in  the 
defendant.  The  bond  fides  of  the  publication,  and  not 
what  a  man  of  rational  understanding  would  have  done, 
is  the  question  to  be  canvassed." 2  The  defendant,  who 
was  the  ground  landlord  and  remainder  man  of  leasehold 


1  Hargrave  v.  Le  Breton,  4  Burr.  2422. 
*  Pitt  v.  DoDOvan,  1  M.  &  £el.  639. 


§  206^.]  SLANDER    OF   TITLE.  313 

premises,  of  which  the  plaintiff  was  assignee  of  the  lessee, 
stated  at  an  auction  at  which  the  lease  and  assignment 
were  put  up  for  sale,  that  all  the  covenants  in  the  lease 
had  been  broken,  that  he  had  commenced  ejectment  to 
recover  the  possession  of  the  premises,  and  that  it  would 
cost  £70  to  repair  the  premises,  in  consequence  of  which 
the  lease  brought  less  than  it  otherwise  would.  On  the 
trial  it  appeared  that  some  only  of  the  covenants  in  the 
lease  had  been  broken,  and  the  judge  directed  the  jury, 
that  the  only  question  was,  whether  what  the  defendant 
stated  was  untrue,  and  if  it  was,  the  plaintiff  was  entitled 
to  recover.  The  jury  found  for  plaintiff,  and  gave  £40 
damages.  On  motion  for  a  new  trial,  the  ruling  at  the 
trial  was  held  erroneous,  and  that  the  proper  question 
was,  whether  so  much  of  the  defendant's  statement  as  was 
false  was  also  malicious.1  Where  the  plaintiff,  as  admin- 
istratrix, was  about  to  sell  leasehold  property ;  defendant? 
after  being  informed  by  the  attorney  of  the  plaintiff  that 
there  was  no  will  of  the  decedent,  issued  an  advertise- 
ment, offering  a  reward  for  the  will  of  such  decedent, 
held  the  question  was  whether  he  had  "a  sincere  and 
genuine  belief  that  there  was  a  will." 2  A.  died  possessed 
of  furniture  in  a  beer-shop.  His  widow,  without  taking 
out  administration,  continued  in  possession  of  the  beer- 
shop  for  three  or  four  years,  and  then  died,  having  whilst 
so  in  possession  assigned  all  the  furniture  by  bill  of  sale 
to  her  landlords  by  way  of  security  for  a  debt  she  had  con- 
tracted with  them.  After  the  widow's  death,  the  plaintiff 
took  out  letters  of  administration  to  the  estate  of  A.,  and 
informed  the  defendant,  the  landlord's  agent,  that  the  bill 
of  sale  was  invalid,  as  the  widow  had  no  title  to  the  fur- 
niture. Subsequently  the  plaintiff  was  about  to  sell  the 
furniture  by  auction,  when  the  defendant  interposed  to 

1  Brook  v.  Rawl,  4  Exch.  521,  and  see  Goulding  v.  Herring,  1  Rolle  R.  141. 
a  Atkins  v.  Perrin,  3  Fost.  &  F.  180. 

21 


314  WHAT   LANGUAGE   IS   ACTIONABLE.       [Ch.  \  111. 

forbid  the  sale,  and  said  that  he  claimed  the  goods  for  his 
principals  under  a  bill  of  sale.  On  proof  of  these  facts,  in 
an  action  for  slander  of  title,  the  plaintiff  was  non-suited : 
held,  that  the  mere  fact  of  the  defendant's  having  been 
told  before  the  sale  that  the  bill  of  sale  was  invalid,  was 
no  evidence  of  malice  to  be  left  to  the  jury,  and  that  the 
plaintiff  was,  therefore,  properly  non-suited.1  An  order 
having  been  made  by  the  Court  of  Chancery,  requiring 
G\,  the  plaintiff,  to  pay  a  sum  of  money,  the  defendant 
registered  the  order  pursuant  to  Statute  1  and  2  Vict.,  ch. 
110,  whereby  it  became  a  lien  on  the  real  estate  of  the 
plaintiff,  and  prevented  him  raising,  by  a  sale  or  mortgage 
of  his  estate,  the  money  ordered  to  be  paid,  held  the 
action  could  not  be  maintained,  there  being  no  proof  of 
malice.2  And  where  the  defendant  published  a  notice 
cautioning  all  persons  not  to  purchase  of  the  plaintiff  a 
certain  tract  of  land,  alleging  that  the  plaintiff  obtained 
the  title  to  said  land  from  the  defendant  by  means  of 
false  pretences,  and  that  the  defendant  intended  to  insti- 
tute a  suit  to  annul  plaintiff's  pretended  title,  was  held 
not  on  its  face  to  show  malice.8 

8  206&.  Some  of  the  old  cases  hold  that  one  claiTTirng 
title  in  himself  cannot  give  a  right  of  action,  that  to 
render  the  charge  actionable  it  must  assert  a  title  in  a 
stranger.4  This  distinction  no  longer  prevails.  So  for- 
merly it  seems  to  have  been  supposed  that  the  only 
ground  of  damage  was  a  loss  of  the  sale  or  leasing  of  the 
property,  the  title  to  which  was  assailed ;  it  is,  however, 
well  settled  at  this  day  that  any  damage  which  is  a  nat- 

1  Steward  v.  Young,  Law  Rep.  V,  122  C.  P. 

2  Gibbs  v.  Pike,  1  Dowl.  N.  S.  409 ;  6  Jur.  465. 

3  McDaniel  v.  Baca,  2  Cal.  326. 

4  Jenkins  Cent.  24V;  Pennyman  v.  Rabanks,  Cro.  Eliz.  427;  s.  c,  Mo.  410;  Lovett 
v.  Weller,  l*Rolle  R.  409 ;  Gerard  v.  Dickinson,  4  Rep.  IS;  Sneadc  v.  Badley,  3  Buls. 
15;  s.  c,  1  Rolle  R.  244;  and  see  Vin.  Abr.  Act.  for  Words,  L  (B.  2),  8;  Anon.  Sty. 
414;  Boulton  v.  Shields,  3  Up.  Can.  Q.  B.  21. 


§  200/;.]  SLANDER   OF   TITLE.  315 

ural  and  proximate  consequence  of  the  language  will  sup- 
port an  action.1  The  action  cannot  be  maintained  unless 
there  is  special  damage.2  Where,  prior  to  the  publication 
of  the  language  complained  against,  the  plaintiff  and  one 
W.  had  contracted  for  the  sale  of  a  lot  of  land — in  conse- 
quence of  the  publication,  W.  wished  to  be  released  from 
his  contract,  and  plaintiff  released  him — plaintiff  sued, 
charging  the  loss  of  a  sale  to  W.  as  the  special  damage, 
held  that  the  rescinding;  of  the  contract  with  W.  was  not 
special  damage,  and  that  no  action  could  be  maintained.3 
But  where  plaintiff  had  borrowed  a  sum  of  money  of  de- 
fendant, and  afterwards  plaintiff  bought  spruce  battens 
of  A.  Before  delivery  of  the  battens,  defendant  gave 
notice  to  A.  not  to  deliver  them,  and  that  he,  plaintiff, 
had  a  lien  upon  them.  In  an  action  by  plaintiff,  alleging 
that  the  defendant  falsely  claimed  such  lien,  and  that  by 
reason  of  such  notice  and  pretence  of  lien  and  non-de- 
livery of  said  battens,  he  had  lost  the  use  of  them,  and 
been  hindered  in  building  certain  houses,  it  was  objected 
that  there  being  a  valid  contract  with  A.  if  plaintiff  had 
suffered  any  damage  by  reason  of  the  non-delivery  of  the 
battens,  he  must  look  to  A.  .That  the  non-delivery  was 
an  illegal  act  for  which  the  defendant  was  not  liable,  but 
the  court  held  otherwise,  and  sustained  the  action.4  Per- 
haps plaintiff  being  prevented  from  raising  money  by 
mortgage  on  his  lands,  is  such  damage  as  may  entitle  him 
to  maintain  an  action.5     Where  the  alleged  slander  con- 


1  Malachy  v.  Soper,  3  Bing.  N.  C.  371 ;  3  Sc.  723 ;  Tasburgh  v.  Day,  Cro. 
Jac.  485. 

3  "Watson  v.  Reynolds,  1  Mo.  &  Malk.  1  ;  Lowe  v.  Harwood,  Sir  W.  Jones,  190  ; 
8.  c,  Cro.  Jac.  140 ;  Pal.  529 ;  Cane  v.  Goulcling,  Sty.  169 ;  Sneade  v.  Badley,  3  Bulst. 
75 ;  s.  c,  1  Rolle  R.  244 ;  Brook  v.  Raw],  4  Exch.  521 ;  Rater  v.  Baker,  3  C.  B.  831, 
and  ante,  in  note  3,  p.  309. 

8  Kendall  v.  Stone,  5  N.  Y.  14,  rev'g  s.  c,  2  Sandf.  269. 

4  Green  v.  Button,  2  Cr.  M.  &  R.  707. 

6  Linden  v.  Graham,  1  Duer,  670.  In  that  c;ihc  the  action  was  not  maintained, 
erroneously,  as  we  suppose,  because  the  damage  was  not  stated  with  sufficient  cer- 


316  WHAT   LANGUAGE   IS    ACTIONABLE        [Cll.  VIIL 

sists  in  the  defendant  claiming  title  in  himself,  the  fact  of 
his  not  having  a  title  is  not  per  se  evidence  of  malice.1 
But  the  defendant  having  no  title  is  a  circumstance  from 
which  malice  may  be  inferred.2  Where  the  defendant  in 
fact  made  the  publication  under  the  advice  of  counsel,  but 
did  not  at  the  time  of  making  the  publication,  state  that 
he  was  acting  under  such  advice,  held  that  the  fact  of  his 
acting  under  such  advice  did  not  per  se  shield  him  from 
an  action ; 3  but  it  was  a  circumstance  to  be  considered  in 
determining  whether  or  not  the  publication  was  made 
maliciously.4 

§  206c.  The  action  for  slander  of  title  is  not  restricted 
to  language  affecting  real  property,  it  lies  for  slander  of 
title  to  personal  property ;  thus,  where  at  a  public  sale  of 
rye  the  defendant  attended,  and  in  the  presence  and  hear- 
ing of  the  persons  there  assembled,  said :  "  I  forbid  selling 
the  rye ;  it  is  mine,"  in  consequence  of  which  persons  were 
deterred  from  bidding,  and  the  rye  sold  for  less  than  it 
would  otherwise  have  done,  it  was  held  an  action  could  be 
maintained.5 

§  207.  As  one  cannot  cloak  his  wrong-doing  by  the  use 

tainty.  The  want  of  certainty  was  a  ground  for  making  the  complaint  more  definite, 
but  not,  as  we  think,  for  holding  the  complaint  insufficient.  As  to  how  the  damage 
must  be  alleged,  see  Malachy  v.  Soper,  3  Bing.  N.  C.  371 ;  Tilk  v.  Parsons,  2  Car.  <fc 
P.  201 :  Delegal  &  Highley,  8  Car.  &  P.  444.  A  general  allegation  that  the  plaintiff's 
property  has  been  lessened  in  value,  or  that  people  believe  he  has  no  title,  or  that  he 
has  been  prevented  from  selling,  is  not  sufficient.     (See  £§  329,  369, post.) 

1  Hill  v.  Ward,  13  Ala.  310. 

■  McDaniel  v.  Baca,  2  Cal.  326. 

s  Like  v.  McKinstry,  41  Barb.  186;  affd  4  Keyes,  397. 

4  Hill  v.  Ward,  13  Ala.  310. 

6  Like  v.  McKinstry,  41  Barb.  186;  affd  4  Keyes,  397;  and  see  Gutsole  v.  Math- 
ers, 1  M.  &  W.  495  ;  1  Tyrw.  &  Gr.  694 ;  Green  v.  Button,  1  Gale,  349 ;  2  C.  M.  <fc 
R.  707  ;  1  Tyrw.  &  G.  118 ;  Malachy  v.  Soper,  3  Bing.  N  C.  371 ;  3  Scott,  723 ;  Rowe 
v.  Roach,  1  M.  A  S.  304;  Carr  v.  Duckett,  5  Hurl.  <fe  N.  783;  Hill  v.  Ward,  13  Ala. 
310;  and  slander  of  title  to  a  slave.  Ross  v.  Pines,  Wythe,  71.  An  action  was 
maintained  for  alleging  that  plaintiffs  machines  were  an  infringement  on  defendant's 
patents.     (Wren  v.  Weild,  Law  Rep.  IV,  Q.  B.  213.)     See  ante,  note  p.  307. 


§  207.]  CONCERNING   THINGS.  317 

of  ironical  language  (§  133),  so  neither  can  one  with  im- 
punity attack  a  person  by  pretending  to  attack  a  thing ; 
for  although  the  words  may  be  professedly  concerning  a 
thing,  yet  if  in  reality  they  concern  a  person,  they  will  be 
judged  by  the  rules  governing  language  concerning  the 
person.1  Whether  certain  language  concerns  a  person  or 
a  thing  is  sometimes  a  question  difficult  to  determine ;  but 
it  is  always  a  question  of  fact,  and  like  every  other  ques- 
tion of  fact,  is  to  be  determined  sometimes  by  the  court 
and  sometimes  by  the  jury  (§  69).  The  language  which 
on  its  face  concerns  a  person,  may  indirectly  affect  a  per- 
son other  than  the  person  whom  on  its  face  the  language 
concerns.  It  may  affect  one  as  concerning  him  personally, 
and  affect  another  as  concerning  a  thing.  The  language 
heretofore  referred  to  (§  201)  concerning  an  actress,  where- 
by she  refused  to  perform  her  engagement,  was  as  to  her 
concerning  the  person,  but  as  to  her  employer  it  was  con- 
cerning a  thing,  namely,  his  right  of  property  in  or  to  her 
services. 


1  Carr  v.  Hood,  1  Camp.  355,  n.  In  Tobias  v.  Harland,  4  Wend.  53?,  the  court 
said  that  words  disparaging  an  article  made  or  dealt  in  by  the  plaintiff,  were  not 
actionable  unless  they  imputed  deceit  or  malpractice  in  the  making  or  vending,  or  a 
want  of  skill  in  the  manufacturing.  In  reference  to  this  dictum  it  must  be  observed 
that  words  imputing  to  plaintiff  deceit  or  want  of  skill,  do  not  concern  the  thing  but 
the  person,  and  are  therefore  withiu  the  rules  relating  to  personal  defamation.  See 
Latimer  v.  West.  Morning  News  Co.,  25  Law  Times  N.  S.  44.  As  to  pleas  in  actions 
for  slander  of  title,  see  Mair  v.  Caly,  12  Up.  Can.  Q.  B.  71 ;  Boulton  v.  Shields,  3  id. 
21. 


CHAPTER  IX. 

DEFENSES. 

Privileged  publications  generally — Repetition — Truth — 
Legislative  proceedings  and  reports  thereof — Judicial 

proceedings — Parties  to  proceedings — Counsel —  Wit- 
nesses— Judges — Grand    jurors — Reports  of  judicial 

proceedings — Quasi  judicial  proceedings — Church  dis- 
cipline— Seeking  advice  or  redress  other  than  judicially 
— Giving  information  or  advice  generally — Attorney 
and  client — Master  and  servant — Candidates  for  office 
or  employment — In  sanity — Drunkenness — Infancy — 
Accord  and  satisfaction — Previous  recovery — Apology 
— Freedom  of  the  press — Criticism. 

S  208.  The  actionable  lan<mage  referred  to  in  the 
preceding  chapter  is  to  be  understood  as  prima  facie 
actionable  only,  that  is  to  say,  it  is  actionable  when  pub- 
lished without  any  legal  excuse  for  making  the  publica- 
tion.1 We  have,  in  previous  chapters  (§§  64,  65),  referred 
to  the  kinds  of  legal  excuses,  and  the  distinction  between 
legal  excuses  and  defenses,  and  (§  50)  stated  that  it  is 
the  occasion  which  determines  of  every  act,  and  conse- 
quently of  the  act  of  publication,  whether  or  not  it  admits 

1  To  every  libel  there  may  be  an  implied  justification  from  the  occasion.  (Weather- 
stone  v.  Hawkins,  1  T.  R.  110.)  But  "there  are  some  libels  it  is  impossible  to  jus- 
tify." (Pollock,  Ch.  B.,  Darby  v.  Ouseley,  25  Law  Jour.  227,  Ex.)  "  Whether  the 
circumstances  under  which  a  communication  is  made  constitute  it  a  privileged  com- 
munication or  not,  is  a  question  which  the  court  has  assumed  the  jurisdiction  to 
decide.  But  it  is  more  a  question  of  fact  in  each  particular  case  than  a  question  of 
law.  The  court  is  to  consider  whether  the  occasion  is  such  as  to  make  the  communi- 
cation one  of  a  privileged  character.  That  being  so,  it  by  no  means  follows  that  we 
can  derive  much  aid  in  one  case  from  another,  the  circumstances  of  which  are  not 
exactly  the  same."  (Maule,  J.,  Wenmani/.  Ash,  13  G.  B.  836);  and  see  D;r 
Ouseley,  1  Hurl.  &  N.  1. 


PRIVILEGED    PUBLICATIONS.  319 

of  a  legal  excuse  or  defense.  When  the  occasion  really 
or  apparently  furnishes  a  legal  excuse  for  making  the 
publication,  in  that  event  the  publication  is  termed  a 
privileged  publication  (§  120),  or  a  privileged  communi- 
cation. Privileged  publication  is  the  better  term,  because 
the  phrase  privileged  communication  has  another  mean- 
ing, namely,  a  communication  made  under  circumstances 
which  either  entitles  or  obliges  the  person  to  whom  the 
communication  is  made  to  withhold  the  disclosure  of  the 
matter  communicated.1  The  term  privileged  communica- 
tion, when  hereafter  employed,  will  be  as  a  synonym  for 
privileged  publication. 

§  209.  Privileged  publications  are  usually  divided 
into  absolutely  privileged  and  conditionally  privileged.2 
By  an  absolutely  privileged  publication  is  not  to  be 
understood  a  publication  for  which  the  publisher  is  in  no 
wise  responsible,  but  it  means  a  publication  in  respect  of 
which,  by  reason  of  the  occasion  upon  which  it  is  made, 
no  remedy  can  be  had  in  a  civil  action  of  slander  or  libel. 
A  conditionally  privileged  publication  is  a  publication 
made  on  an  occasion  which  furnishes  a  prima  facie  legal 

1  As  to  the  distinction  between  communications  privileged  from  being  given  in 
evidence  and  privileged  from  being  a  cause  of  action  for  slander  or  libel,  see  remarks 
of  Bushe,  C.  J.,  Black  v.  Holmes,  1  Fox  &  Sm.  35. 

2  Perkins  v.  Mitchell,  31  Barb.  467;  Warner  v.  Paine,  2  Sandf.  19S.  Privileged 
communications  are  of  four  kinds,  to  •wit:  where  the  publisher  of  the  alleged  slander 
acted  in  good  faith  in  the  discharge  of  a  public  or  private  duty,  legal  or  moral,  or  in 
the  prosecution  of  his  own  rights  or  interests  ;  anything  said  or  written  by  a  master 
concerning  the  character  of  a  servant  who  has  been  in  his  employment ;  words  used 
in  the  course  of  a  legal  or  judicial  proceeding;  and  publications  duly  made  in  the 
ordinary  mode  of  parliamentary  proceedings.  (White  v.  Nichols,  3  How.  U.  S.  Rep. 
266.)  Absolutely  privileged  communications  are  of  two  kinds:  (1.)  proceedings  in 
courts  of  justice ;  (2.)  memorials  and  petitions  to  the  legislature.  (Cook  v.  Hill,  3 
Sandf.  341.)  Courts  are  not  inclined  to  extend  the  doctrine  of  absolutely  privileged 
communications.  {Id.)  A  conditionally  privileged  publication  must  be  made  "  in 
good  faith,  believing  the  statements  it  contains  to  be  true,  or  having  probable  cause 
to  believe  th  m  to  be  true."  If  there  was  no  probable  cause  for  the  communication, 
the  law  implies  that  it  was  made  with  malice.  If,  however,  it  appears  that  there  was 
probable  cause,  the  communication  is  privileged,  no  matter  how  much  actual  malice 
dictated  it.    {Id.) 


320  DEFENSES.  [Ch.  IX. 

excuse  for  the  making  of  it;  and  which  is  privileged 
unless  some  additional  fact  is  shown,  which  so  alters  the 
character  of  the  occasion  as  to  prevent  it  furnishing  a 
legal  excuse.  The  additional  fact  which,  in  the  majority 
of  cases,  is  required  to  be  shown  to  destroy  this  condi- 
tional privilege  is  malice,  meaning  bad  intent,  in  the  pub- 
lisher, *.  e.  an  intent  to  injure  the  person  whom  or  whose 
affairs  the  language  concerns ;  and,  therefore,  by  a  condi- 
tionally privileged  publication  is  very  generally  understood 
one  which  rebuts  the  presumption  of  malice,  meaning 
absence  of  legal  excuse,  which  in  cases  where  no  legal 
excuse  is  apparent,  arises  from  the  mere  fact  of  publica- 
tion.1 And,  therefore,  it  has  been  said :  "  Instead  of  the 
expression  '  privileged  communication,'  it  is  more  correct 
to  say  that  the  communication  was  made  on  an  occasion 
which  rebuts  the  presumption  of  malice."2  The  proper 
meaning  of  a  privileged  communication  is  only  this :  that 
the  occasion  on  which  the  communication  was  made 
rebuts  the  inference  'prima  facie  arising  from  a  statement 
prejudicial  to  the  character  of  the  plaintiff,  and  puts  it 
upon  him  to  prove  that  there  was  malice  in  fact,  that  the 
defendant  was  actuated  by  motives  of  personal  spite  or 
ill-will,  independent  of  the  occasion  on  which  the  com- 


1  "  In  general  an  action  lies  for  the  malicious  publication  of  statements  which  are 
false  in  fact  and  injurious  to  the  character  of  another  (within  the  well  known  limits 
as  to  verbal  slander),  and  the  law  considers  such  publication  as  malicious  unless  it  is 
fairly  made  by  a  person  in  the  discharge  of  some  public  or  private  duty,  whether 
legal  or  moral,  or  in  the  conduct  of  his  (the  publisher's)  own  affairs,  in  matters 
where  his  interest  is  concerned.  In  such  cases,  the  occasion  prevents  the  inference 
of  malice  which  the  law  draws  from  unauthorized  communications,  and  affords  a 
qualified  defense  depending  upon  the  absence  of  actual  malice.  If  fairly  warranted. 
by  any  reasonable  occasion  or  exigency,  and  honestly  made,  such  communications 
are  protected  for  the  common  convenience  and  welfare  of  society,  and  the  law  has  not 
restricted  the  right  to  make  them  within  any  narrow  limits."  (Parke,  B.,  Toogood 
v.  Spyring,  1  Cr.  M.  <fc  R.  181;  4  Tyr.  582;  and  to  the  like  effect  see  Coxhead  v. 
Richards,  2  C.  B.  569 ;  Blackham  v.  Pugh,  2  C.  B.  611  ;  Bennett  v.  Deacon,  2  C.  B. 
628;  Taylor  v.  Hawkins,  16  Q.  B.  (Adol.  &  El.  X.  S.)  308;  Kine  v.  Sewall,  3  M.  & 
W.  297;  Swan?;.  Tappan,  5  Cush.  104.) 
2  Erie,  J.,  Gilpin  v.  Fowler,  9  Ex.  615. 


§  200.]  PRIVILEGED    PUBLICATIONS.  321 

munication  was  made.1  The  description  of  cases  recog- 
nized as  privileged  comnnmications  must  be  understood 
as  exceptions  to  the  rule  (that  every  defamatory  publi- 
cation implies  malice),  and  as  being  founded  upon  some 
apparently  recognized  obligation  or  motive,  legal,  moral, 
or  social,  which  may  fairly  be  presumed  to  have  led  to 
the  publication,  and,  therefore,  prima  facie  relieves  it 
from  the  just  implication  from  which  the  general  rule  of 
law  is  deduced.  The  rule  of  evidence  as  to  such  cases  is, 
accordingly,  so  far  changed  as  to  impose  it  on  the  plaintiff 
to  remove  those  presumptions,  flowing  from  the  seeming 
obligations  and  situations  of  the  parties,  and  to  require 
of  him  to  bring  home  to  the  defendant  the  existence  of 
malice  as  the  true  motive  of  his  conduct.2  And  it  has 
been  said:  Few  rules  of  law  are  of  greater  practical 
importance  than  that  which  requires  proof  of  express 
malice,  where  the  words  are  spoken  under  circumstances 
which  make  the  communication  privileged.  The  malice 
required  to  deprive  communications  of  this  sort  of  the 
protection  arising  out  of  the  occasion  of  the  speaking  of 
the  words,  must  be  such  as  to  induce  the  court,  or  any 
reasonable  person,  to  draw  the  inference  that  the  occasion 
has  been  taken  advantage  of  to  give  utterance  to  an 
unfounded  charge.8  Privileged  communications  compre- 
hend all  statements  made  hona  fide  in  performance  of  a 
duty,  or  with  a  fair  and  reasonable  purpose  of  protecting 
the  interest  of  the  person  making  them,4  or  the  interest 
of  the  person  to  whom  they  are  made.5     A  communica- 


1  Wright  v.  Woodgate,  2  Cr.  M.  <fe  R.  5*73.  "Where  the  writer  is  acting  on  any 
duty,  legal  cr  moral,  towards  the  person  to  whom  he  writes,  or  where  he  has  by  his 
situation  to  protect  the  interest  of  that  person,  that  which  he  writes  under  such  cir- 
cumstances is  a  privileged  communication,  and  no  action  will  lie  for  what  is  thus 
written,  unless  the  writer  be  actuated  by  malice.  (Cockayne  v.  Hodgkisson,  5  Car. 
&  P.  543.) 

5  White  v.  Nicholls,  3  How.  U.  S.  Rep.  266. 

3  Manby  v.  Witt,  18  C  B.  544. 

4  Somervillc  v.  Hawkins,  10  C.  B.  583;  15  Jur.  450. 

5  Tattison  v.  Jones,  8  B.  &  C.  578. 


322  DEFENSES.  [Ch.   IX. 

cation  made  bona  fide  upon  any  subject-matter  in  which 
the  party  communicating  has  an  interest,  or  in  reference 
to  which  he  has  a  duty,  is  privileged,  if  made  to  a  person 
having  a  corresponding  interest  or  duty,  although  it  con- 
tain criminatory  matter,  which,  without  this  privilege, 
would  be  slanderous  and  actionable.  But  in  this  defini- 
tion of  a  privileged  communication,  the  word  duty  "  can- 
not be  confined  to  legal  duties,  which  may  be  enforced  by 
indictment,  action,  or  mandamus,  but  must  include  moral 
and  social  duties  of  imperfect  obligation."  1  But,  as  was 
said  by  Creswell,  J. : 2  "  It  is  not  easy  very  precisely  to 
define  what  is,  and  what  is  not,  a  privileged  communica- 
cation."  We  venture,  with  much  hesitation,  to  suggest 
the  rule  as  to  privilege  to  be  :  one  may  publish,  by  speech 
or  writing,  whatever  he  honestly  believes  is  essential  to 
the  protection  of  his  own  rights,  or  to  the  rights  of 
another,  j^rovided  the  publication  be  not  unnecessarily 
made  to  others  than  to  those  persons  whom  the  publisher 
honestly  believes  can  assist  him  in  the  protection  of  his 
own  rights,  or  to  those  whom  he  honestly  believes  will, 
by  reason  of  a  knowledge  of  the  matter  published,  be 
better  enabled  to  assert,  or  to  protect  from  invasion,  either 
their  own  rights,  or  the  rights  of  others  entrusted  to  their 
guardianship  (§  241). 

§  210.  It  will  be  convenient,  prior  to  considering  the 
several  occasions  which  give  rise  to  privileged  publica- 
tions, to  discuss  the  supposed  privilege  under  certain  con- 
ditions of  repeating  defamatory  matter.  It  already  ap- 
pears that  the  publication  of  defamatory  matter  cannot  be 
justified  on  the  ground  that  it  is  but  a  repetition' (§  114).3 

1  Harrison  v.  Bush,  5  El.  &  Bl.  349. 

3  Wenman  v.  Ash,  13  Com.  B.  844. 

3  One  who  repeats  a  slander  is  responsible.  (Evans  v.  Smith,  5  Monr.  363;  Ken- 
nedy v.  McLoughlin,  5  Gray,  3;  Clarke  v.  Munsell,  6  Mete.  373;  Hampton  v.  Wilson, 
4  Dev.  468.)  It  is  no  defense  to  an  action  for  defamatory  matter  published  in  a 
newspaper  that  it  was  the  communication  of  a  correspondent,  or  copied  from  another 


§  210.]  REPETITION.  323 

For  a  long  period,  however,  it  was  tacitly  conceded  that 
such  a  repetition  could  be  justified  by  declaring  the  name 
of  the  previous  publisher.  The  origin  of  the  error  is 
generally  attributed  to  a  dictum  in  the  Earl  of  North- 
ampton's case,  A.  D.  1613.1  That  case  was  an  information 
under  the  statutes  of  scandalam  magnatum  in  the  Star 
Chamber,  against  Goodrich,  Cox,  Varner,  Minor,  Lake, 
and  Ingram,  for  publishing  defamatory  language  concern- 
newspaper.  (Talbutt  v.  Clark,  2  Moo.  &  R.  312;  Sanford  v.  Bennett,  24  N.  Y.  20  ; 
Miles  v.  Spencer,  1  Holt  R.  533  ;  Parker  v.  McQueen,  8  B.  Monr.  16)  or  that  it  had 
been  previously  published,  and  the  plaintiff  had  failed  to  prosecute  the  previous  pub- 
lisher (Rex  v.  Holt,  5  T.  R.  436  ;  Curtis  v.  Mussey,  6  Gray  (Mass.),  261 ;  see  Poppen- 
heim  v.  Wilkes,  1  Strobhart,  275) ;  or  that  when  the  charge  was  made,  the  plaintiff 
did  not  deny  it.  (Fuller  v.  Dean,  31  Ala.  654.)  In  Reg.  v.  Newrnan,  1  El.  &  Bl. 
268,  the  defendant  on  the  trial  offered  to  put  in  evidence  the  Dublin  Review,  of  a 
date  prior  to  the  alleged  libel,  in  order  to  show  that  the  charge  contained  in  the  libel 
had  been  published  a  considerable  time  before  the  alleged  libel,  and  that  the  pub- 
lisher had  not  been  prosecuted ;  this  evidence  was  rejected,  and  the  rejection  was 
made  one  of  the  grounds  for  a  motion  for  a  new  trial,  and  per  Coleridge,  J.,  "  It  has 
been  said  that  probably  the  libel  was  true  because  another  libel  was  published  by 
another  person.  Upon  that  principle,  it  might  have  been  argued  that  the  statements 
in  the  Dublin  Review  were  true  because  they  had  previously  appeared  in  some  other 
publication.  Such  evidence  is  far  too  vague  to  be  received.  The  fallacy  of  the 
learned  counsel's  argument  consists  in  the  prosecutor's  alleged  submission  to  the  pre- 
vious libel.  The  utmost  that  can  be  said  is  that  he  did  not  prosecute  the  parties. 
That  might  have  arisen  from  various  considerations.  He  might  not  be  able  to  fix 
on  a  particular  person,  or  upon  any  one  of  character,  or  he  might  be  prevented  from 
proceeding  by  his  poverty,  or  by  a  variety  of  other  circumstances.  Besides,  it  is  not 
always  considered  expedient  to  institute  proceedings  in  respect  to  the  first  charge." 
Nor  is  it  any  justification  that  prior  to  the  publication  complained  against,  there  was 
a  rumor  or  report  current  aud  generally  believed  that  the  plaintiff  was  guilty  of  the 
offense  imputed.  (Hampton  v.  Wilson,  4  Dev.  468 ;  Haskins  v .  Lumsden,  10  Wis. 
359;  Moberly  v.  Preston,  8  Mis.  R.  462 ;  Cude  v.  Redditt,  15  La.  An.  492;  Dane  v. 
Kenney,  5  Foster,  N.  H.  318  ;  Lewis  v.  Niles,  1  Root,  346;  Knight  v.  Foster,  39  N.  H. 
576 ;  Woolcott  v.  Hall,  6  Mass.  514;  Alderman  v.  French,  1  Pick.  1 ;  Watkin  v.  Hall, 
Law  Rep.  Ill,  Q.  B.  396) ;  or  that  the  defendant  spoke  the  words  as  merely  giving 
the  report.  (Wheeler  v.  Shields,  2  Scam.  348;  Smalley  v.  Anderson,  4  Monr.  367.) 
Perhaps  a  defendant  may  give  in  evidence  under  the  general  issue  the  existence  of 
rumors  against  the  plaintiffs  character,  to  show  that  he  has  sustained  no  injury,  or 
mitigation.  ( Waithman  v.  Weaver,  1  D.  &  R.  10 ;  Treat  v.  Crowning,  4  Conn.  408 ; 
Nelson  v.  Evans,  1  Dev.  9;  Calloway  v.  Middleton,  2  A.  K.  Marsh.  372;  Binns  v. 
Stokes,  27  Mis.  (5  Cush.)  239.)  Neither  particular  reports,  nor  public  reputation  of 
the  slander,  nor  of  kindred  charges  against  the  plaintiff,  are  admissible.  (Inman  v. 
Foster,  8  Wend.  602 ;  Kennedy  v.  Gifford,  19  Wend.  296 ;  Mapes  v.  Weeks,  4  Wend. 
659;  Watson  v.  Buck,  5  Cow.  499.)  See  §  216. 
1  12  Rep.  132;  Moore,  821. 


324  DEFENSES.  [CL  IX 

ing  the  Earl  of  Northampton.  The  defendants  all  ap- 
peared in  court ;  Goodrich  confessed  to  the  publication, 
but  alleged  in  justification  that  he  was  not  the  first  author, 
and  vouched  said  Cox,  who,  in  like  manner,  confessed  and 
vouched  said  Varner,  who  in  like  manner  confessed  and 
vouched  said  Minor,  who  in  like  manner  confessed  and 
vouched  said  Lake,  who  in  like  manner  confessed  and 
said  he  heard  the  words  from  one  Spoket,  who  said  he 
heard  them  from  said  Ingram,  who  in  like  manner  con- 
fessed and  said  he  heard  the  words  from  two  English  fu- 
gitives at  Leghorn.  The  court  intimated  that  the  defense 
of  the  language  being  a  repetition  would  be  available  in  the 
case  of  a  common  person,  but  not  in  the  case  of  a  peer,  and 
all  the  defendants  were  punished  by  fine  and  imprison- 
ment. The  error  so  far  gained  ground  that  subsequently 1 
we  find  it  held  that  a  plaintiff  in  an  action  for  slander, 
where  the  slander  appeared  to  be  a  repetition,  was  re- 
quired in  his  declaration  to  negative  that  the  defendant 
had  in  fact  heard  spoken  the  language  he  was  charged 
with  publishing.  Passing  over  a  long  interval  we  find, 
A.  D.  1796,  Lord  Kenyon,  then  Chief  Justice  of  the 
King's  Bench,  referring  approvingly  to  the  Earl  of  North- 
ampton's case,  but  he  introduced  this  qualification  that  to 
render  the  repetition  justifiable,  the  defendant  must  at  the 
time  of  the  repetition,  mention  the  name  of  the  previous 
publisher,  and  that  to  name  the  previous  publisher  for  the 
first  time  in  the  defendant's  plea  3  was  not  a  justification. 
This  qualification  was  repeated  in  a  subsequent  case, 
A.  D.  1805.3  This  other  qualification  was  also  introduced, 
that  if  the  first  publisher  retracted  what  he  had  published ; 
one  who  subsequently  and  with  a  knowledge  of  such  re- 
traction repeated  the  matter,  was  not  legally  excused  by 


1  Crawford  v.  Middleton,  1  Lev.  82. 

2  Davis  v.  Lewis,  7  T.  R.  17 ;  and  see  Church  v.  Bridgman,  6  Missouri,  190. 

3  Woolnoth  v.  Meadows,  5  East,  463. 


§  210.]  REPETITION.  323 

naming  the  prior  publisher.1  It  long  continued  to  be  con- 
ceded as  law  that  no  action  could  be  maintained  for  the 
repetition  orally  of  defamatory  matter,  if  at  the  time  of 
the  repetition  the  name  of  the  previous  publisher  was 
mentioned ;  thus,  in  A.  D.  1829,  in  an  action  for  slander, 
the  plea  that  the  language  was  a  repetition  of  words  pre- 
viously spoken  by  A.,  and  that  A.  was  named  as  the 
author  at  the  time  of  the  publication,  was  overruled,  not 
because  naming  the  author  was  no  defense,  but'  because 
the  plea  did  not  allege  that  A.  spoke  the  words  mali- 
ciously, nor  that  the  defendant  believed  them  to  be  true, 
nor  that  they  were  spoken  on  a  justifiable  occasion.2  In 
Connecticut,  it  seems,  that  giving  the  name  of  the  author 
was  never  allowed  as  a  defense,  but  the  fact  was  received 
in  mitigation ; 3  subsequently  it  was  held  not  receivable  in 
that  State,  even  in  mitigation.4  In  Pennsylvania,  giving 
the  name  of  the  previous  publisher  was  held  to  rebut  the 
inference  of  malice,5  and  to  amount  to  a  mitigating  circum- 
stance.6 In  Maine,  and  some  other  States,  it  has  been 
held  that  in  an  action  for  slander,  giving  the  name  of  the 
previous  publisher  of  the  words  is  a  justification  of  the 
repetition.7     Thus  far   we   have   had   reference   only   to 

1  Maitland  v.  Goldney,  2  East,  426. 

2  McPhearson  v.  Daniels,  10  B.  &  C.  263  ;  and  see  Moberly  v.  Preston,  8  Missouri, 
462.  In  Lewis  v.  Walter,  4  B.  <fc  Aid.  605,  it  was  said  there  must  be  a  just  reason  for 
the  repetition.  In  Hawkes  v.  Coster,  1  Law  Reporter,  192  (London,  1821),  Abbott, 
Ch.  J.,  nonsuited  the  plaintiff  in  an  action  for  slander,  "for  the  defendant  only — 
repeated  the  words  of  another,  and  gave  his  name  at  the  time." 

3  Leister  v.  Smith,  2  Root,  24. 

4  Austin  v.  Hanchett,  2  Root,  148 ;  Treat  v.  Browning,  4  Conn.  408. 

6  Binns  v.  McCorcle,  2  P.  A.  Brown's  R.  79 ;  Hersh  v.  Ringwalt,  3  Yeates,  508. 

8  Kennedy  v.  Gregory,  1  Binney,  85  ;  Morris  v.  Duane,  1  Binney,  90,  n.  In  New 
Jersey,  naming  the  previous  publisher  was  received  in  mitigation.  (Cook  v.  Barkley, 
1  Pennington's  N.  J.  Rep.  169,  A.  D.  1807.)  In  Jarnigan  v.  Fleming,  43  Missi.  711, 
it  is  said  that  naming  the  previous  publisher  is  not  a  defense,  unless  it  is  made  with  a 
good  motive.  This  is  equivalent  to  saying — that  naming  the  previous  publisher  is 
not  a  defense. 

7  Unless  it  be  proven  that  the  repetition  was  malicious.  (Haynes  v.  Leland,  29 
Maine,  233 ;  Abrams  v.  Smith,  8  Blackf.  95  ;  Jones  v.  Chapman,  5  Blackf.  88  ;  Crane 


326  DEFENSES.  [Cll.  IX. 

actions  for  slander ;  the  first  case  in  which  the  question 
appears  to  have  been  raised  in  an  action  for  libel,  was  in 
the  Supreme  Court  of  Pennsylvania,  A.  D.  1803.1  It  was 
there  held  that  giving  the  name  of  the  author  was  no  ex- 
cuse for  the  publication  of  a  libel.  The  like  ruling  was 
made  A.  D.  1813,  in  the  Supreme  Court  of  New  York.2 
The  first  mention  of  the  point  arising  in  an  action  for  libel 
in  the  English  courts  was  in  A.  D.  1817,  when  it  was 
held  not  to  be  a  defense  that  the  defamatory  matter  was 
communicated  to  the  defendant  by  a  third  person.8  In  a 
subsequent  case  for  publishing  an  alleged  libel,  purporting 
to  be  an  account  of  a  trial,  the  plea  was  that  the  alleged 
libel  had  been  previously  published  in  the  H.  Journal, 
and  that  Gr.  H.  M.  then  and  still  was  the  publisher 
thereof ;  on  demurrer  the  plea  was  held  bad,  as  the  de- 
fendant in  his  repetition  had  only  named  the  journal  from 
which  the  alleged  libel  was  copied,  and  had  not  given  the 
name  of  the  publisher,  and  it  was  intimated  by  the  court 
that  the  defense  of  the  publication  being  a  repetition,  and 


v.  Douglass,  2  Blackf.  85;  Cummerford  v.  McAvoy,  15  111.  311 ;  Johnston  v.  Lance,  7 
Iredell,  448.)  Disclosing  name  of  author  at  time  of  repetition  held  a  defense.  (Kelly 
v.  Dillon,  5  Ind.  (Porter),  426  ;  Trabue  v.  Mayo,  3  Dana,  138 ;  Robinson  v.  Harvey, 
5  Monr.  519  ;  Parker  v.  McQueen,  8  B.  Monr.  16.)  Giving  name  of  author  is  evidence 
of  want  of  malice.  (Miller  v.  Kerr,  2  M'Cord,  285 ;  Church  v.  Bridgeman,  6  Miss. 
190;  and  see  Easterwood  v.  Quinn,  2  Brevard,  64;  Smith  v.  Stewart,  5  Barr.  372; 
Sexton  v.  Todd,  Wright  (Ohio),  317  ;  Haine  v.  Welling,  7  Ham.  253  ;  Farr  v.  Eoscoe, 
9  Mich.  353.)  The  defense  of  giving  name  of  author  must  be  specially  pleaded. 
(Brooks  v.  Bryan,  Wright,  760.)  In  slander,  evidence  that  the  defendant  had  been 
told  by  a  third  person  that  the  plaintiff  was  guilty  of  the  crime  imputed  to  him  is 
inadmissible.  (Mapes  v.  Weeks,  4  Wend.  659;  Austin  v.  Hanchett,  2  Root,  148.)  In 
slander,  it  is  no  justification  that  defendant  after  speaking  the  words  and  before  the 
commencement  of  the  action,  disclosed  to  plaintiff  the  author  of  the  words.  (Skin- 
ner v.  Grant,  12  Verm.  456.)  In  Scott  v.  Peebles,  2  Sme.  &  M.  546,  it  was  held  to  be 
no  defense  to  an  action  for  slander  that  the  defendant  heard  the  matter  from  a  person 
out  of  the  jurisdiction  of  the  -court.  See  Evidence  in  Mitigation,  and  Gilman  v. 
Lowell,  1  Amer.  Lead.  Cas.  202,  n. ;  2  Greenl.  Ev.  §  424,  re. 

1  Runkle  v.  Meyers,  3  Veates,  518. 

"  Dole  v.  Lyon,  10  Johns.  447.  In  Tennessee  the  plea  of  repeating  the  words  of 
another  is  no  defense  to  a  libel  under  any  circumstances.  (Larkins  v.  Tarter,  3  Sneed, 
681.)     Otherwise  in  slander.     (Id.) 

3  Miles  v.  Spencer,  1  Holt,  K  P.  533. 


§  211.]  TRUTH.  327 

that  the  previous  publisher  was  named  at  the  time  of  the 
repetition,  did  not  apply  to  libel.1  The  first  case  in  which 
the  dictum  in  the  Earl  of  Northampton's  case  appears  to 
have  been  altogether  repudiated,  was  one  before  Judge 
Betts  in  New  York,  A.  D.  1825.2  (.It  may  now  be  con- 
sidered as  settled  in  New  York  and  in  England,  that 
neither  in  the  action  for  slander  nor  for  libel  is  it  any 
legal  excuse  that  the  alleged  defamatory  matter  had  been 
previously  published  by  another,  whose  name  was  men- 
tioned at  the  time  of  the  repetition.8  / 

§  211.  It  is  now  universally  conceded  that  to  show 
the  truth  of  the  matter  published  is  a  complete  defense  to 
an  action  either  of  slander  or  libel.  A  publication  of 
the  truth  is,  as  to  a  civil  action,  absolutely  privileged.4 

1  Lewis  v.  Walter,  4  B.  &  Aid.  605,  A.  D.  1821. 

"  Chevalier  v.  Brush,  Anthon's  Law  Student,  186  ;  this  was  followed  by  Mapes  v. 
Weeks,  4  "Wend.  659 ;  Inman  v.  Foster,  8  Wend.  602 ;  Hotcbkiss  v.  Oliphant,  2  Hill, 
510;  and  see  Johnston  v.  Laud,  7  Iredell,  448  ;  Dole  v.  Lyon,  10  Johns.  447  ;  Clark- 
son  v.  McCarty,  5  Blackf.  574;  Moberly  v.  Preston,  8  Mis.  462;  Romayne  v.  Duane, 
3  Wash.  C.  C.  216 ;  The  State  v.  Butman,  15  La.  An.  166. 

3  McGregor  v.  Thwaites,  3  B.  &  C.  24  ;  4  D.  &  R.  695  ;  De  Crespigny  v.  Wellesly, 
5  Bing.  392;  Bennett  v.  Bennett,  6  C.  &  P.  588  ;  Fidrnan  v.  Ainslie,  10  Exch.  63; 
nor  does  it  make  a  defense  that  the  defendant  believed  the  matter  published  to  be 
true  (id. ;  Saus  v.  Joerris,  14  Wis.  663);  or  that  plaintiff  himself  had  previously 
published  the  same  matter.  (Cook  v.  Ward,  6  Bing.  409 ;  Abshire  v.  Cline,  3  Ind. 
115.) 

4  Truth  is  a  good  defense  in  an  action  for  libel  or  slander.  (Ante,  notes  2,  3,  p.  116  ; 
and  see  Stat.  6  and  7  Vict.,  ch.  96;  Perry  v.  Mann,  1  Rhode  Island,  263;  Root  v. 
King,  7  Cow.  613,  and  4  Wend.  113;  1  Stark,  on  Sland.  229;  Lake  v.  Hutton,  Hob. 
253 ;  FAnson  v.  Stuart,  1  T.  R.  748) ;  but  it  must  be  pleaded  and  cannot  be  given  in 
evidence  under  the  general  issue,  either  in  bar  or  in  mitigation.  (Underwood  v. 
Parkes,  Str.  1200 ;  Manning  v.  Clement,  7  Bing.  367 ;  2  Greenl.  Ev.  §  424 ;  Andrews 
v.  Van  Deuser,  11  Johns.  38;  Van  Ankin  v.  West  fall,  14  Johns.  233;  Shephard 
v.  Merrill,  13  Johns.  475;  Snyder  v.  Andrews,  6  Barb.  43 ;  Wagner  v.  Holbrunner,  7 
Gill,  296;  Smith  v.  Smith,  8  Ired.  29  ;  Kelly  v.  Dillon,  5  Porter  (Ind.),  426;  Arring- 
ton  v.  Jones,  9  Port.  139;  Douge  v.  Pearce,  13  Ala.  127 ;  Kay  v.  Fredrigal,  3  Barr, 
221  ;  Thompson  v.  Bowers,  1  Doug.  321 ;  Taylor  v.  Robinson,  29  Maine  (16  Shep.), 
323;  Tcagle  v.  Deboy,  8  Blackf.  134;  Wagstaff  v.  Ashton,  1  Ilarring.  503;  Bodwell 
v.  Swan,  3  Pick.  376;  Alderman  v.  French,  1  Pick.  1 ;  Updegrove  v.  Zimmerman,  IS 
Penns.  619;  Scott  v.  McKinnish,  15  Ala.  662;  Eagan  v.  Gantt,  1  McMullan,  468; 
Rumsey  v.  Webb,  1  Car.  &  M.  104 ;  Else  v.  Evans,  Anthon  N.  P.  23;  Burns  v.  Webb, 
1  Tyler,  17  ;  Samuel  v.  Bond,  Litt.  Sel.  Cas.  158;  Treat  v.  Browning,  4  Conn.  408  ; 
Bisbey  v.  Shaw,  1 2  N.  Y.  67 ;  Sheahan  v.   Collins,  20  111.  325 ;  Haws  v.  Stanford,  4 


328  DEFENSES.  [Cll.  IX. 

The  cases,  of  rare  occurrence,  of  actions  for  writing  de- 
famatory words  upon  documents  of  the  plaintiff,  whereby 
the  document  is  rendered  less  valuable,  or  entirely  value- 
less, to  the  owner,  are  not  exceptions  to  this  rule.  Such 
actions  are,  in  fact,  not  actions  for  libel,  but  actions  for 
malicious  injury  to  property,  in  such  actions  the  truth 
of  the  defamatoiy  matter  does  not  amount  to  a  defense ; 


Sneed,  520;  and  see  Sidgreaves  v.  Myatt,  22  Ala.  617.)  The  defendant  may  prove 
in  mitigation  such  facts  as  show  a  ground  of  suspicion .  not  amounting  to  actual  proof 
of  the  charge  (Wagner  v.  Holbrunner,  7  Gill,  296),  or  which  tends  to  a  proof  of  the 
truth,  yet  falls  short  of  it  (Snyder  v.  Andrews,  6  Barb.  43;  Bisbey  v.  Shaw,  12  X. 
Y.  67;  Scott  v.  McKinnish,  15  Ala.  662),  or  which  rebut  the  presumption  of  malice. 
(Kennedy  v.  Dear,  6  Porter,  90 ;  Arrington  v.  Jones,  9  Porter,  139 ;  Hart  v.  Reed,  1 
B.  Monr.  166;  Chapman  v.  Calder,  14  Penns.  (2  Harris),  365;  Abshire  v.  Cline,  3 
Ind.  115  ;  and  see  Moseley  v.  Moss,  6  Gratt.  534.)  Evidence  of  general  bad  character 
may  be  admitted  under  the  general  issue.  (Smith  v.  Smith,  8  Ired.  29  ;  Taylor  v. 
Richardson,  29  Maine,  323.)  An  action  of  slander  for  charging  a  man  with  having 
the  venereal  disease,  and,  with  that  disease  upon  him,  contracting  marriage,  and 
communicating  that  disease  to  his  wife,  cannot  be  maintained,  if  the  plaintiff  im- 
mediately after  his  marriage  had  the  disease  in  fact,  even  by  proof  that  his  wife, 
whom  he  married  without  knowing  that  she  had  the  disease,  communicated  it  to 
him.  (Golderman  v.  Stearns,  V  Gray,  181.)  In  slander  for  calling  plaintiff  a  whore, 
the  words  were  laid  to  have  been  spoken  in  1842  ;  plea,  that  plaintiff,  while  unmar- 
ried, in  1834,  had  carnal  connection  with  one  A.  Replication,  that  plaintiff,  at  the 
time  mentioned  in  the  plea,  was  betrothed  to  said  A. ;  that  afterwards  she  was  law- 
fully married  to  him ;  that  she  lived  with  him  a  virtuous  life  until  August,  1836, 
when  he  died ;  and  that  she  had  ever  since  continued  to  live  in  innocent  and  virtuous 
widowhood.  Held,  on  general  demurrer,  that  the  replication  was  insufficient.  (Al- 
corn v.Hooker,  7  Blackf.  5S.)  "Where  the  charge  is  of  a  crime  of  which  the  plaintiff 
was  convicted,  it  is  no  answer  to  a  plea  of  the  truth  of  the  charge,  that  the  plaintiff 
was  pardoned.     (Baum  v.  Clause,  5  Hill,  196  ;  see  ante,  §  158.) 

The  provision  of  the  Constitution  of  the  State  of  New  York,  as  to  the  defense  of 
truth  in  prosecutions  for  libel,  does  not  apply  to  civil  actions.  (Dolloway  v.  Turrill, 
26  Wend.  383.)     See  further  under  heads  Pleading,  Evldtnce. 

It  is  said  that  where  a  crime  is  charged,  and  the  defense  of  truth  is  sustained, 
the  plaintiff  may  be  put  upon  his  trial  for  the  offense  without  the  intervention  of  a 
grand  jury.  (Cook  v.  Field,  3  Esp.  R.  133.)  Many  instances  have  occurred  where 
the  plaintiff's  action  for  slander  imputing  the  commission  of  a  crime,  have  occasioned 
the  prosecution  and  conviction  of  the  plaintiff  for  the  imputed  offense.  See  Pigot's 
Case,  Cro.  Car.  383 ;  and  note  t,  1  Stark.  Slan.  237 ;  Symms  v.  Blake,  2  C  M.  &  R. 
416;  4  Dowl.  P.  C.  263;  1  Gale,  182. 

Wm.  Parks,  the  first  printer  in  Williamsburg,  Virginia,  published  (A.  D.  1736) 
of  a  member  of  the  House  of  Assembly,  that  he  had  been  convicted  of  sheep-steal- 
ing; Parks  being  arraigned  before  the  House,  stated  the  charge  to  be  true,  and  that 
being  found  the  fact,  he  was  discharged.  See  Thomas'  History  of  Printing  in 
America. 


§  211.]  TRUTH.  329 

thus  where  a  coach  proprietor  wrote  upon  the  license  of  his 
driver  "  Discharged  for  being  one  shilling  short,"  or  where 
a  police  commissioner  wrote  on  "  a  certificate  "  of  a  police 
officer  "  Dismissed  the  police  force,"  pleas  of  the  truth  of 
these  statements  were  overruled.1  We  do  not  pretend  to 
vindicate,  either  as  just  in  its  practical  operation  or  sound 
in  principle,  the  rule  which  makes  truth  a  complete  defense 
to  an  action  for  slander  or  libel.  Neither  the  justice  nor 
expedience  of  this  rule  is  universally  nor  even  very  gener- 
ally conceded.2  The  maxim,  that  a  man  shall  not  profit 
by  his  own  wrong,3  ordinarily  adduced  as  an  apology  for 


1  Rogers  v.  Maenarnara,  14  Com.  B.  2*7 ;  Hurrell  v.  Ellis,  2  Com.  B.  295 ;  Taylor 
v.  Rowan,  V  Car.  &  P.  70. 

2  "  I  am  quite  clear  that  the  truth  ought  not  to  be  made  decisive  (as  a  defense) 
either  in  civil  or  criminal  proceedings ;  for  cases  may  be  put  where  the  truth  instead 
of  being  a  justification,  would  not  even  be  any  mitigation ;  nay,  where  it  would  he 
an  aggravation.  (Lord  Brougham,  Evidence,  Rep.  of  Ho.  of  Lords  on  Libel,  <fec, 
July,  1843) ;  and  see  in  the  same  report  the  opinions  of  other  lawyers  and  judges  to 
the  like  effect;  and  see  2  Kent's  Com.  25;  Borthwick  on  Libel,  252;  29  Pari.  Hist. 
575 ;  Preliminary  Discourse  to  Starkie  on  Slander,  xliv. 

3  Blackstone  gives  as  a  reason  the  merit  of  the  defendant  in  having  exposed  the 
truth.  (3  Black.  Com.  ch.  viii.)  This  is  combated  by  Starkie,  who  contends  for  the 
ground  that  the  plaintiff  cannot  take  advantage  of  his  own  wrong.  (1  Starkie  on 
Slander,  230,  232);  and  see  Preliminary  Discourse  to  Starkie  on  Slander. 

If  the  words  be  true  they  are  no  slander,  and  may  be  justified.  (2  Wils.  301 ;  1] 
Mod.  99.)  If  the  defendant  *  *  prove  the  words  to  be  true,  no  action  will  lie, 
*  *  for  then  it  is  no  slander  or  false  tale.  (3  Black.  Com.  ch.  viii.)  The  defendant  is 
justified  in  law  and  exempt  from  all  civil  responsibility,  if  that  which  he  publishes  be 
true.     (1  Starkie  on  Slander,  229.) 

In  Rex  v.  Roberts  (Ms.  8  Geo.  11,  A.  D.  1*735,  L'd  Hardwicke,  Ch.  J.,  remarks): 
«'  It  is  said  that  if  an  action  was  brought,  the  fact,  if  true,  might  be  justified,  but  I 
think  that  is  a  mistake,  such  a  thing  was  never  thought  of  in  the  case  of  Harman  v. 
Delany  (1  Str.  898).  I  never  heard  such  a  justification  in  an  action  for  a  libel  even 
hinted  at ;  the  law  is  too  careful  in  discountenancing  such  practices ;  all  the  favor 
that  I  know  truth  affords  in  such  a  case  is,  that  it  may  be  shown  in  mitigation  of  dam- 
ages." It  is  added  in  a  note  by  the  editor  of  the  American  edition  of  Starkie  on 
Slander  (vol.  I,  p.  233),  "  In  the  time  of  Lord  Harkwicke,  it  was  denied,  not  only  by 
him  but  by  others,  that  the  truth  could  be  given  in  evidence  in  bar  of  a  recover}' ;  " 
and  in  a  subsequent  note  (vol.  I,  p.  235),  until  1792,  when  the  judges  of  England  gave 
their  opinion  in  Parliament  upon  questions  put  to  them  on  the  Libel  Bill,  the  only 
authorities  for  the  position  that  a  defendant  might  plead  the  truth  of  a  libel  in  justi- 
fication, were  the  dicta  of  Hobart,  C.  J.,  in  Lake  v.  Hutton,  Hob.  R.  253,  and  of  Holt. 
C.  J.,  in  an  anonymous  case,  11  Mod.  99;  and  the  acquiescence  of  the  bar  and  the 
court  in  I'Anson  v.  Stuart,  1  T.  R.  748.  Since  then  are  the  cases  of  King  v.  Parsons, 
22 


330  DEFENSES.  [CL  IX. 

the  rule  under  consideration,  if  it  applies  in  any  case, 
certainly  has  no  application  where  the  truth  consists  in 
the  misfortune  and  not  in  the  wrong-doing  of  the  person 
whom  the  publication  concerns.  The  rule  allowing  truth 
as  a  defense  in  a  civil  action  for  slander  or  libel  appears 
to  be  an  innovation,  and  of  comparatively  modern  intro- 
duction.1 Probably  its  origin  was  in  this  wise :  Until  the 
statute  of  the  fourth  year  of  Queen  Anne,  A.  D.  1706, 
only  a  single  plea  was  permitted  in  a  civil  action,  and 
there  is  no  record  prior  to  that  statute  of  a  plea  of  truth 
in  an  action  for  slander  or  libel.  At  least  until  A.  D. 
1702,  truth  was  admitted  in  mitigation  under  the  general 
issue  of  not  guilty,2  but  between  that  date  and  A.  D. 
1716,  probably  after  the  statute  of  Anne  allowing  several 
pleas,  at  a  meeting  of  the  judges  of  England,  the  rule 
was  settled  not  to  allow  the  truth  to  be  given  in  evidence 
in  mitigation,  but  requiring  "  that  it  should  be  pleaded." s 
From  this  we  infer  that  no  such  plea  existed  prior  to  that 
time,  and  the  requiring  the  truth  to  be  specially  pleaded 
was  evidently  to  prevent  a  surprise  upon  the  plaintiff,  and 
to  enable  him  to  be  prepared  with  his  reply.  Notwith- 
standing this  rule  requiring  truth  to  be  specially  pleaded, 
we  find  that  at  least  until  A.  D.  1735,  truth  was  regarded 
only  as  a  matter  of  mitigation.  The  system  of  pleading 
then  in  vogue  knew  no  such  thing  as  a  plea  in  mitigation ; 

A.  D.  1799,  in  -which  L'd  Kenyon  observed  that  it  was  competent  for  a  defendant  in 
an  action  for  libel  to  plead  the  truth  in  justification,  and  Plunket  v.  Cobbett,  A.  D. 
1804,  in  which  Lord  Ellenborough  remarked,  "in  case  the  libel  had  been  true  the  de- 
fendant could  have  justified  it  on  the  record."  Another  reason  assigned  for  making 
truth  a  defense  is,  that  truth  disentitles  to  damages.  (Blackburn,  J.,  Campbell  v. 
Spottiswoode,  8  Law  Times  Rep.  N.  S.  201 ;  3  Best  &  S.  769  ;  Fairman  v.  Ives,  5  B. 
&  Aid.  646.) 

1  Selwyn's  N.  P.  986 ;  Borthwick  on  Libel,  246.  Truth,  it  is  said,  was  at  all  times 
a  defense  in  an  action  for  slander.  (1  Stark,  on  Slander,  234;  3  Blac.  Com.  ch.  viii.) 
This,  however,  seems  doubtful.  See  Smith  v.  Richardson,  Willes,  20;  Bull.  N.  P.  V. 
Where  it  is  said,  "  When  evidence  of  the  truth  of  the  words  was  offered  in  mitigation 
of  damages,  Lord  Macclesfield,  with  a  great  deal  of  indignation,  refused  to  admit  it." 

2  Underwood  v.  Parks,  2  Strange,  1200. 

3  Smithies  v.  Harrison,  1  L'd  Raym.  727. 


§  212.]  TRUTH.  331 

in  that  system  every  plea  was  either  in  abatement  or  in 
bar,  and  when  truth  was  required  to  be  pleaded  it  was 
almost  of  course  to  regard  it  as  a  plea  in  bar,  and  thus,  as 
we  suppose,  the  truth,  when  specially  pleaded,  became  a 
defense.  The  truth,  however,  which  is  admitted  as  a  de- 
fense is  the  truth  of  the  defamatory  matter  in  substance 
and  in  fact,  and  in  the  sense  in  which  it  was  used  and  was 
intended  to  be  understood.  If  A.  says  of  X.  that  he  is  a 
thief,  and  C.  publishes  that  A.  said  X.  was  a  thief,  in  a 
certain  sense  C.  would  publish  the  truth,  but  not  in  the 
sense  which  would  constitute  a  defense ;  C.'s  publication 
would  in  fact  be  but  a  repetition  of  A.'s  words,  which,  as 
we  have  seen,  would  not  be  a  defense.  (§  210.)  The 
truth,  which  in  such  a  case  would  amount  to  a  defense, 
would  be  that  X.  was  a  thief.1  Again,  if  A.,  speaking 
ironically,  says  of  X.  that  he  is  an  honest  man,  meaning 
and  conveying  the  idea  that  X.  is  a  dishonest  man,  it 
would  not  be  a  justification  of  these  words  to  allege  that 
it  was  true  X.  was  an  honest  man,  but  to  constitute  a 
defense  the  allegation  required  would  be  that  it  was  true 
X.  was  a  dishonest  man.  We  shall  give,  in  the  follow- 
ing sections,  some  illustrations  of  the  requirements  of  a 
justification  on  the  ground  of  truth,  and  the  subject  will 
be  further  illustrated  under  the  head  of  Pleading.  (§  355.) 

§  212.  Where  defamatory  allegations,  whether  pub- 
lished orally  or  in  writing,  are  divisible  (§  145),  but  not 
otherwise,  the  defendant  is  permitted  to  justify  on  the 
ground  of  truth,  one  or  some  of  them,  less  than  the 
whole.2     But  whether  he  justify  the  whole  or  a  part  only, 

1  Watkin  v.  Hall,  Law  Rep.  Ill ;  Q.  B.  396. 

e  ante,  notes,  to  §  145,  and  Stiles  v.  Nokes,  7  East,  493;  Andrews  v.  Thornton, 
8  Bing.  431;  1  M.  &  Sc.  070;  Gregory  v.  Duke  of  Brunswick,  6  Sc.  N.  R.  809; 
Vessey  v.  Pike,  3  C.  &  P.  512  ;  Van  Derveer  v.  Sulphin,  5  Ohio,  N.  S.  293;  O'Connell 
v.  Mansfield,  9  Ir.  Law  R.  179;  Smith  v.  Parker,  13  M.  &  W.  459;  Fero  v.  Puiscoe, 
4  N.  Y.  162.  A  declaration  for  a  libel  commencing  "  horse-stealer,"  and  followed  by 
a  statement  of  facts,  and  concluding  that  the  defendant  published  it  with  intent  to 
cause  it  to  be  believed  that  the  plaintiff  had  been  guilty  of  feloniously  stealing  a 


332  DEFENSES.  [CL  IX. 

the  justification  as  to  so  much  as  is  intended  to  be  jus- 
tified must  go  the  whole  length  of  the  charge  in  all  its 
material  allegations.  The  justification  must  always  be  as 
broad  as  the  charge,  and  of  the  very  charge  attempted  to 
be  justified.1  A  charge  that  the  plaintiff,  a  brewer,  caused 
his  establishment  to  be  supplied  with  unwholesome  water, 
is  not  proved  to  be  true  by  showing  that  the  establish- 
ment tvas  supplied  with  unwholesome  water.  To  estab- 
lish the  truth  of  the  charge,  it  must  be  shown  the  plaintiff 
caused  the  supply.2  To  a  charge  against  the  plaintiff,  a 
schoolmaster,  that  the  decay  of  the  school  under  his 
management  was  attributable  to  his  violent  conduct, 
it  was  held,  on  special  demurrer  to  the  plea,  not  a  suffi- 
cient justification  to  allege  that  the  plaintiff  had  been 
guilty  of  violent  conduct  toward  some  of  his  scholars ;  to 
have  amounted  to  a  justification,  it  should  have  been 
shown  that  the  decay  of  the  school  was  occasioned  by  the 
violent  conduct  of  the  plaintiff.3     A  charge  that  plaintiff 

horse  ;  plea  except  as  to  the  word  horse-stealer,  a  justification,  statiDg  circumstances 
inducing  suspicion  that  the  plaintiff  had  been  guilty  of  the  fact;  held  on  demurrer, 
that  the  plea  was  insufficient.     (Mountney  v.  Watton,  2  B  &  Ad.  673.) 

1  Weaver  v.  Lloyd,  2  B.  &  C.  678;  4  D.  <fe  R.  230;  Bissell  v.  Cornell,  24  Wend. 
354;  Stillwell  v.  Barter,  19  Wend.  478 ;  Fidler  v.  Delavan,  20  Wend.  57;  Torrey  v. 
Field,  10  Verm.  353  ;  Crump  v.  Adney,  1  Cr.  &  M.  362 ;  Burford  v.  Wible,  32  Penns. 
95;  Wilson  v.  Beighler,  4  Iowa,  427;  Van  Derveer  v.  Sutphin.  5  Ohio,  N.  S.  293  ; 
Morrow  v.  McGaver,  1  Ir.  C.  L.  569 ;  Powers  v.  Skinner,  1  Wend.  451 ;  Cooper  v. 
Barber,  24  Wend.  105;  McKinly  v.  Rob,  20  Johns.  351.  The  plea  must  justify  the 
same  words  as  those  contained  in  the  declaration.  (Skinner  v.  Grant,  12  Verm.  466; 
Gregory  v.  Atkins,  42  Verm.  237  ;  Ormsby  v.  Douglass,  2  Abb.  Pr.  R.  407 ;  37 
N.  Y.  377.)  "There  is  no  such  thing  as  a  half-way  justification.  When  several 
distinct  things  are  charged  (§  145,  ante),  the  defendant  may  justify  as  to  one, 
though  he  may  not  be  able  to  do  so  as  to  all ;  but  as  to  any  one  charge  the  justifica- 
tion will  either  be  everything  or  nothing.  If  the  charge  be  of  stealing  a  horse,  it  is 
not  half  a  defense,  nor  any  part  of  one,  to  show  the  plaintiff  took  the  horse  by  a 
mere  trespass."  (Fero  v.  Ruscoe,  4  N.  Y.  165.)  A  charge  that  plaintiff  is  a  "libellous 
journalist,"  is  not  sustained  by  proof  of  his  conviction  of  libel  on  one  occasion. 
(Wakley  v.  Cooke,  4  Exch.  511.) 

s  Fidler  v.  Delavan,  20  Wend.  57.  A  charge  that  plaintiff  was  a  "cheat"  and 
"swindler"  was  held  justified  by  the  fact  that  he  sold  goods  for  the  purpose  of 
preventing  their  seizure  under  an  attachment  for  the  benefit  of  his  creditors. 
(Odiorne  v.  Bacon,  6  Cush.  185.) 

3  Smith  v.  Parker,  13  M.  <fe  W.  459.     To  a  declaration  for  a  libel,  charging  that. 


§  212.]  truth.  333 

had  stolen  defendant's  shingles  is  not  justified  "by  the 
fact  that  plaintiff  sold  defendant's  shingles  without  his 
authority,  and  afterward  denied  that  he  knew  anything 
respecting  them;  to  constitute  a  justification  of  such  a 
charge,  a  felonious  taking  must  be  shown.1  And  where 
the  charge    was   that   plaintiff   had   begotten  a  bastard 

by  hypocritical  cant,  <fec,  plaintiff  and  his  associates  effected  the  incorporation  of  the 
Manhattan  Bank,  in  which  plaintiff's  share  of  the  profits  was  several  thousand 
dollars ;  and  that  plaintiff,  as  a  member  of  the  senate,  advocated  the  bill  entitled 
"  An  Act  for  supplying  the  city  of  Xew  York  with  pure  and  wholesome  water," 
knowiDg  that  it  contained  a  clause  authorizing  the  company  to  carry  on  banking 
business,  and  when  he  knew  that  the  other  members  of  the  legislature  were  ignorant 
of  that  fact,  <fcc,  the  defendant  pleaded  in  justification,  that  the  plaintiff  was  a 
senator  on  second  April,  1*798;  that  such  a  law  was  passed,  and  that,  at  the  time  of 
passing  said  law  (first  April,  179S),  plaintiff,  as  senator,  advocated  the  bill,  knowing 
at  the  time  that  iff  contained  such  clause,  <fcc. ;  and  that  a  large  majority  of  the 
members  of  the  legislature  were  ignorant  of  that  fact,  <fcc. ;  and  that,  at  the  time  and 
place  first  above  mentioned,  plaintiff  held,  and  was  owner  of  a  large  portion  of  the 
stock  created  by  the  said  law,  to  wit,  five  thousand  dollars ;  all  which  acts  of  the 
plaintiff  were  hypocritical  and  deceptive,  and  contrary  to  his  duty  as  a  senator,  <fcc. 
The  plaintiff  replied,  that  at  the  time  he  advocated  the  said  law  as  a  senator,  he  did 
not  hold,  and  was  not  owner  of  any  stock  created  by  it ;  nor  had  he  any  interest 
whatever  in  the  stock,  &c.  On  a  general  demurrer  to  the  reply  the  plea  was  held  to 
be  bad,  as  not  being  an  answer  to  the  declaration,  and  that  the  defendant  having 
committed  the  first  fault  in  pleading,  the  plaintiff  was  entitled  to  judgment. 
(Spencer  v.  Southwick,  11  Johns.  573  ;  rev'g  10  Johns.  259,  where  the  replication  was 
held  to  be  bad.)  Held  that  a  charge  of  incest  could  not  be  justified  by  alleging  that 
plaintiff  told  the  defendant  her  brother  had  had  sexual  intercourse  with  her. 
( Abshire  v.  Cline,  3  Ind.  115  ;  and  see  Long  v.  Brougher,  5  "Watts,  437,  and  in  note 
3,  p.  327,  ante.)  It  is  not  every  act  of  illicit  intercourse  on  the  part  of  a  female  that 
will  justify  calling  her  a  whore.  (Smith  v.  Wyman,  4  Shep.  13.)  The  defendant,  in 
a  case  of  slander,  admitted  in  his  answer  that,  while  he  was  conducting  his  own 
cause  before  a  justice,  and  examining  the  plaintiff  as  a  witness,  he  interrogated  him: 
"Do  you  say  I  put  you  on  Williams'  land?"  that  the  witness  answered,  "  I  do," 
and  that  the  defendant  replied,  "  That's  a  lie."  The  answer  farther  alleged  that 
plaintiff's  answer  to  defendant's  question,  and  his  statement  that  the  defendant  put 
witness  on  Williams'  land,  were  untrue.  Held,  that  the  answer  was  not  good  as  a 
justification  of  a  charge  of  perjury.  (Lewis  v.  Black,  27  Miss.  425.)  A  charge  that 
plaintiff's  ship  was  unseaworthy  and  had  been  bought  by  Jews  to  take  out  con- 
victs, is  not  justified  by  showing  the  ship  was  unseaworthy.  (Ingram  v.  Lawson,  5 
Bing.  N.  C.  66.)  The  justification  should  be  of  the  mcanhiff,  not  of  the  words  merely. 
(Snow  v.  Witcher,  9  Ired.  346;  Fidler  v.  Delavan,  20  Wend.  57.)  The  charge  must 
be  directly  met,  and  not  argumentatively  or  by  inference.  {Id.)  Where  the  charge 
was  that  the  plaintiff  had  bolted,  it  is  not  a  justification  to  say  he  quitted.  (O'Brien 
v.  Bryant,  16  M.  &  W.  168 ;  4  D.  &  L.  341 ;  16  Law  Jour.  Rep.  77,  Ex. ;  and  see 
Wachter  v.  Quenzer,  29  N.  Y.  547;  Ede  v.  Scott,  7  Ir.  L.  R.  N.  S.  607;  Watkiu  v. 
Hall,  Law  Rep.  Ill  Q.  B.  396.) 

1  Shepherd  v.  Merrill,  13  Johns.  475. 


334  DEFENSE.-.  [Cll.  IX. 

child,  innuendo  that  he  had  committed  adultery  with  the 
child's  mother,  it  was  held  that  to  allege  an  adulterous 
intercourse  with  the  mother  of  the  bastard  was  not  stat- 
ing a  sufficient  justification.1  So  a  charge  of  selling  in- 
toxicating liquor  contrary  to  law,  is  not  justified  by 
showing  a  sale  of  intoxicating  liquor.  The  charge  that 
the  sale  was  contrary  to  law  is  not  answered.2  Nor  is  a 
charge  that  the  plaintiff  had  one  night  gone  nine  miles 
from  home  to  four  different  colliers'  shanties,  and  that  she 
had  gone  to  bed  to  the  colliers,  justified  by  showing  that 
plaintiff  had  committed  fornication  with  one  collier  else- 
where than  at  the  shanties  referred  to  in  the  charge.3  A 
charge  of  criminal  intercourse  with  A.  cannot  be  justified 
by  showing  a  criminal  intercourse  with  B.4  A  charge 
that  "  he  is  a  lying,  slanderous  rascal,"  is  not  justified  by 
showing  that  plaintiff  had  stated  what  was  untrue,  unless 
it  be  also  shown  that  he  did  it  maliciously.5  To  justify  a 
charge  that  plaintiff  will  steal  anything  he  can  get  hold 
of :  "  He  is  in  the  habit  of  picking  up  things.  He  stole 
wool  of  L.,"  various  acts  of  theft  must  be  shown.6  So  a 
charge  of  committing  one  offense  is  not  justified  by  show- 
ing the  commission  of  another  offense,  although  of  the 
same,  or  even  greater  enormity.7     A  charge  of   stealing 

1  Holton  v.  Muzzy,  30  Verm.  365. 

2  Holton  v.  Muzzy,  30  Verm.  365. 

3  Burford  v.  Wible,  32  Penn.  St.  R.  95  ;  and  see  Ricke  v.  Stanley,  6  Blackf.  169  ; 
semble,  a  defendant  cannot  justify  a  charge  that  the  plaintiff  had  criminal  intercourse 
with  a  certain  woman  at  a  certain  place,  by  pleading  that  he  had  such  intercourse 
with  her  at  another  place.     (Sharp  v.  Stephenson,  12  Ired.  348.) 

4  Walters  v.  Smoot,  11  Ired.  315  ;  and  see  Pallet  v.  Sargent,  36  N.  H.  496  ;  Randall 
v.  Holsenbake,  3  Hill,  So.  Car.  1*75  ;  Ridley  v.  Perry,  4  Shepl.  21.  In  case  for  words  im- 
porting adultery  with  Jane  at  stile,  defendant  may  give  in  evidence  in  mitigation  of 
damages  that  plaintiff  commited  adultery  with  Jane  at  stile,  but  not  evidence  of 
adultery  with  any  other.    (Smithies  v.  Harrison,  1  Ld.  Raym.  727.) 

5  Snowdon  v.  Linds,  1  Cr.  C.  C.  569. 

6  Talmadge  v.  Baker,  22  Wis.  624. 

7  Stow  v.  Converse,  4  Conn.  17;  Torrey  v.  Field,  10  Verm.  353;  Andrews  v.  Van 
Deuzer,  11  Johns.  38.  Charging  plaintiff  with  being  a  whore  is  not  justified  by  the 
fact  that  she  is  a  "  reputed  thief."    (Smith  v.  Buckecker,  4  Rawle,  295.)     It  is  no 


§  212.]  truth.  335 

one  kind  of  chattel  cannot  be  justified  by  showing  theft  of 
another  kind  of  chattel.  A  charge  that  plaintiff  stole  "  a 
pot  and  waiter  "  is  not  justified  by  the  fact  that  he  stole 
a  waistcoat  pattern.1  A  charge  of  stealing  a  dollar  from 
A.  cannot  be  justified  by  proof  of  stealing  a  dollar  from 
B.2  To  prove  a  forgery  to  the  amount  of  $80  is  not  a 
justification  of  a  charge  of  forgery  to  the  amount  of  $250, 
or  any  other  sum.3  A  charge  of  the  crime  against  nature 
with  a  mare,  is  not  justified  by  showing  a  commission  of 
that  crime  with  a  cow.*  A  charge  that  A,  a  commissioner 
to  examine  witnesses,  returned  the  examination  of  divers 
witnesses  that  were  never  sworn,  is  not  justified  by  proof 
of  a  return  of  the  examination  of  one  witness  who  had 
not  been  sworn.5  Nor  is  a  charge  that  the  plaintiff  carried 
on  smuggling  as  a  business  justified  by  proof  of  a  single 
act  of  smuggling.6  So  a  charge  of  smuggling  during  the 
war  is  not  justified  by  showing  a  smuggling  before  the 
war.7  And  where  the  charge  was  that  plaintiff  was  a 
bankrupt  in  April,  in  the  twelfth  year  of  James  the  First, 
it  was  held  not  to  be  a  justification  to  show  that  plaintiff 
was  a  bankrupt  in  the  fifteenth  year  of  James  the  First.8 
It  is  not  a  justification  of  several  charges  to  prove  the 

justification  of  a  charge  of  horse-stealing  and  counterfeiting  that  plaintiff  was  thought 
no  more  of  than  a  horse-thief.  (Nelson  v.  Musgrave,  10  Mis.  648.)  A  charge  of  hard- 
ness toward  the  poor,  dissoluteness  of  morals,  (fee,  purporting  to  be  conclusions  from 
instances  of  bad  conduct  previously  narrated  in  the  publication,  cannot  be  justified  by 
proof  of  other  instances.    (Bartholemy  v.  The  People,  2  Hill,  248.) 

1  Eastland  v.  Caldwell,  2  Bibb,  21 ;  Hilsden  v.  Mercer,  Cro.  Jac.  676.  A  charge 
of  perjury  on  one  occasion  cannot  be  justified  by  showing  that  plaintiff  committed 
perjury  on  some  other  occasion,  or  in  some  other  respect,  than  that  alleged.  ( Whit- 
taker  v.  Carter,  4  Ired.  461 ;  Starr  v.  Harrington,  1  Smith  (Ind.)  360;  1  Cart.  515; 
Eandall  v.  Holsenbake,  3  Hill,  So.  Car.  175.) 

s  Self  v.  Gardner,  15  Mis.  480. 

*  Stiles  v.  Comstock,  9  How.  Pra.  R.  44. 

4  Andrews  v.  Van  Deuzer,  11  Johns.  38. 

6  Fish  v.  Thorowgood,  Cro.  Eliz.  623. 

6  Stillwell  v.  Barter,  19  Wend.  487. 

7  Stillwell  v.  Barter,  19  Wend.  487. 

8  Upsheer  v.  Betts,  Cro.  Jac.  578. 


336  DEFENSES.  [Ch.  IX. 

trutli  of  one  of  them.1  A  charge  in  these  words :  "  thou 
hast  played  the  thief  with  me,  and  hast  stolen  my  cloth 
and  a  half  yard  of  velvet,"  is  not  justified  by  showing 
that  plaintiff  was  defendant's  tailor,  and  that  he,  defend- 
ant, delivered  to  plaintiff  a  yard  and  a  half  of  velvet  to 
make  defendant  hose,  and  plaintiff  made  them  too  narrow, 
by  reason  of  which  defendant  said,  "  Thou  hast  stolen 
part  of  the  velvet  which  I  delivered  to  you." 2  A  charge 
against  an  attorney,  "  You  are  a  paltry  lawyer,  and  used 
to  play  on  both  hands,1'  is  not  justified  by  showing  that 
juaintiff  had  exhibited  articles  of  the  peace  against  R., 
and  had  afterwards  promised  R.  that  he  should  not  be 
molested  on  account  of  those  articles,  and  that  notwith- 
standing he  had  endeavored  to  prosecute  R.  upon  those 
articles.3  A  charge  that  plaintiff,  an  attorney,  had  been 
struck  off  the  rolls  is  not  justified  by  showing  that  he  was 
suspended  for  two  years.4  A  charge  that  plaintiff,  a  pub- 
lic minister,  had  traitorously  betrayed  the  secrets  of  his 
own  government,  is  not  justified  by  the  fact  that  the  plaint- 
iff disclosed  the  instructions  given  to  him  as  such  minister, 
although  coupled  with  the  additional  fact  that  he  was 
censured  by  his  government  for  making  such  disclosures.5 
A  charge  that  plaintiff,  a  counsellor-at-law,  had  offered 
himself  as  witness  in  order  to  divulge  the  secrets  of  his 
client,  is  not  justified  by  the  fact  that  in  a  private  conver- 
sation out  of  court  the  plaintiff  disclosed  a  secret  of  his 
client,  nor  by  the  fact  that  plaintiff  offered  himself  as  a 
witness  to  divulge  matters  communicated  to  him  by  his 
client,  but  which  were  not  privileged  publications  in  the 
sense  of  publications  he  was  privileged  from  disclosing 
(§  208).6   A  charge  that  plaintiff,  a  clergyman,  had  asserted 

1  Powers  v.  Skinner,  1  "Wend.  451. 

2  Johns  v.  Gittens,  Cro.  Eliz.  239 ;  and  see  Bellingham  v.  Myners,  Cro.  Eliz.  153. 

3  Rich  v.  Holt,  Cro.  Jac.  267. 

4  Blake  v.  Stevens,  4  Fost.  &  F.  432. 

5  Genet  v.  Mitchell,  1  Johns.  120. 

6  Riggs  v.  Denniston,  3  Johns.  Cas.  198. 


§  212.]  TRUTH.  337 

that  the  blood  of  Christ  had  nothing  to  do  with  our  sal- 
vation, more  than  the  blood  of  a  hog,  is  not  justified  by 
the  fact  that  plaintiff  had  denied  the  divinity  of  Christ 
and  the  doctrine  of  the  atonement;  and  asserted  that 
Christ  was  a  creature,  a  perfect  man,  but  there  was  no 
more  virtue  in  his  blood  than  that  of  any  creature.1  So  a 
charge,  "  But  this  is  not  the  first  time  the  idea  of  false- 
hood and  M.  B.  (plaintiff)  have  been  associated  together 
in  the  minds  of  many  honest  men,"  is  not  justified  by  the 
fact  that  more  than  seven  persons  believed  plaintiff  not  to 
be  a  man  of  truth,  but  addicted  to  falsehood.2  Charging 
the  plaintiff,  a  proctor,  with  having  been  suspended  tliree 
times,  is  not  justified  by  the  fact  that  he  had  been  once 
suspended.3  Where  the  charge  is  of  a  crime  committed 
under  aggravating  circumstances,  the  aggravating  circum- 
stances must  be  justified ;  it  is  not  sufficient  to  justify  as 
to  the  commission  of  the  crime.  Thus  where  the  alleged 
libel  charged  that  the  plaintiff  had  been  tried  for  murder 
in  a  duel,  and  that  "  he  had  spent  nearly  the  whole  of  the 
night  preceding  the  duel  in  practicing  pistol  firing,"  held 
that  to  constitute  a  justification  it  must  be  shown  not  only 
that  the  plaintiff  had  been  tried  for  murder,  but  that  he 
spent  nearly  the  whole  of  the  night  preceding  the  duel  in 
practicing  pistol  firing.4  The  charge  against  the  plaintiff 
was  inter  alia  "  he  has  robbed  me  to  a  serious  amount" 
The  pleas  were  the  general  issue,  and  as  to  the  words  "  he 
has  robbed  me,"  the  plaintiff  had  robbed  defendant  of  a 
loaf  of  bread  of  the  value  of  three  pence.  On  the  trial 
the  plaintiff  proved  the  charge,  and  the  defendant  proved 


1  Skinner  v.  Grant,  12  Verm.  456. 

2  Brooks  v.  Bemiss,  8  Johns.  455. 

3  Clarkson  v,  Lawson,  6  Bing.  200,  587 ;  4  M.  &  P.  356,  605 ;  and  see  Goodburne 
v.  Bowman,  9  Bing.  532;  3  M.  &  Sc.  69;  Biddulph  v.  Chamberlayne,  17  Q.  B.  351 ; 
Skinner  ads.  Powers,  1  Wend.  451.  A  charge  of  stealing  "hogs"  is  not  justified  by 
the  fact  that  plaintiff  stole  one  hog.     (Swan  v.  Rary,  3  Blackf.  298.) 

4Helsham  v.  Blackwood,  11  C.  B.  Ill ;  20  Law  Jour.  Rep.  N.  S.  187,  C.  P.,  and 
see  Churchill  v.  Hunt,  2  B.  &  Aid.  685. 


338  DEFENSES.  [CL  IX. 

the  stealing  by  plaint  iff  of  the  loaf  of  bread.  The  judge 
directed  the  jury  to  give  some  damages  for  the  words  to 
a  serious  amount,  which  were  not  covered  by  the  plea. 
The  jury  gave  the  plaintiff  forty  shillings  damages,  and 
the  court  above  refused  to  disturb  the  verdict.1  The 
charge  that  plaintiff  had  been  imprisoned  on  a  charge  of 
high  treason,  is  not  justified  by  the  fact  that  plaintiff  was 
arrested  on  suspicion  of  high  treason.2  And  a  charge  that 
the  plaintiff,  a  commissioner  in  bankruptcy,  had  been 
guilty  of  wilful  misconduct  in  his  office,  is  not  justified  by 
showing  misconduct  consistent  with  rectitude  of  intention.3 
Where  the  publication  was  in  "  the  blacklist,"  with  ruled 
columns  showing  entry  of  judgments,  held  not  to  be  justi- 
fied merely  by  showing  such  a  judgment  once  existed. 
The  language  and  mode  of  publication  imputed  the  con- 
tinuance of  a  judgment.4 

§  213.  A  justification  on  the  ground  of  truth  need  not 
go  further  than  the  charge,5  and  it  is  sufficient  to  justify 
so  much  of  the  defamatory  matter  as  is  actionable,6  or  so 
much  as  constitutes  the  sting  of  the  charge ;  it  is  unneces- 
sary to  repeat  and  justify  every  word  of  the  alleged  de- 
famatory matter ; T  it  is  sufficient  if  the  substance  of  the 
libellous  charge  be  justified.8     Thus,  where  the  alleged 

1  1  Starkie  on  Slander,  484. 

2  Cooke  on  Defani.  116. 

3  Riggs  v.  Denniston,  3  Johns.  Cas.  198. 

4  McNally  v.  Oldham,  16  Ir.  Com.  Law,  298 ;  8  Law  Times,  N.  S.  604. 
B  Sanford  v.  Gaddis,  13  111.  329. 

6  Clarke  v.  Taylor,  4  Bing.  N.  C.  654;  and  see  Wilson  v.  Nations,  5  Yerg.  211. 
"Where  the  plea  justifying  a  libel  gare  no  answer  to  particular  scurrilous  terms  used 
in  it;  held  that,  not  containing  any  ground  of  imputation  against  the  plaintiff  distinct 
from  that  which  was  the  gist  of  the  libel,  and  the  truth  of  which  was  justified  by  the 
plea,  the  plea  was  sufficient,  and  a  rule  to  enter  judgment  non  obstante  veredicto  re- 
fused.    (Morrison  v.  Harmer,  3  Bing.  N.  C.  758 ;  5  Sc.  410.) 

''  Edwards  v.  Bell,  1  Bing.  403  ;  Moore  v.  Terrell,  1  N.  &  M.  559 ;  Cooper  v.  Lawson, 
1  Per.  <fc  D.  15 ;  Clark  v.  Taylor,  2  Bing.  N.  C.  654  ;  Morrison  v.  Harmer,  3  Bing.  N".  C. 
759;  5  Scott,  410;  Barrows  v.  Carpenter,  1  Cliff.  204  ;  Cook  v.  Tribune  Asso.,  5  Bl.  C. 
C.  352.     See  §  358,  post. 

8  1  Stark,  on  Slan.  483. 


§  213.]  truth.  339 

libel  was  that  a  serious  misunderstanding  had  taken  place 
amongst  the  Independent  Dissenters  of  M.  and  their  pas- 
tor, the  plaintiff,  in  consequence  of  some  "personal  invec- 
tive "  from  the  pulpit  by  the  latter,  and  that  the  matter 
was  to  be  taken  up  seriously,  held,  that  a  plea  alleging 
that  the  plaintiff  had  spoken  from  the  pulpit  of  a  young- 
lady,  naming  her,  that  her  conduct  was  a  bad  example, 
and  a  disgrace  to  the  school,  and  that  she  did  more  harm 
than  good,  was  a  sufficient  justification ;  that  such  expres- 
sions clearly  constituted  "personal  invective."1  Where 
the  charge  was  that  the  plaintiff  had  been  guilty  of  forni- 
cation, it  was  held  sufficient  as  a  justification  to  allege 
that  the  plaintiff  was  a  strumpet,  as  being  a  strumpet 
included  the  offense  of  fornication.2  And  where  the 
charge  was  that  in  consequence  of  the  plaintiff  being  in  bad 
repute  in  the  county  of  O.,  he  would  not  like  to  bring  his 
action  for  libel  in  that  county,  held,  sufficient  as  a  justifica- 
tion to  allege  that  the  plaintiff  had  the  reputation  in  the 
county  of  O.  of  "a  proud,  captious,  censorious,  arbitrary, 
dogmatical,  malicious,  illiberal,  revengeful,  and  litigious 
man,  and  therefore  was  in  bad  repute,  and  would  not  like 
to  bring  his  suit  there." 3  And  to  a  charge  that  a  plaintiff 
signed  defendant's  name  to  a  note  without  his  (defend- 
ant's) permission,  it  was  held  sufficient  as  a  justification  to 
allege  that  plaintiff  did  sign  defendant's  name  to  a  note 
without  his  (defendant's)  permission.4  Where  the  decla- 
ration alleged  that  plaintiff  was  cashier  to  Q.,  and  that 

1  Edwards  v.  Bell,  1  Bing.  403.  In  an  action  of  slander  by  a  single  woman,  under 
the  act  of  1808,  Rev.  Sts.  of  North  Carolina,  ch.  110,  where  the  words  charged  were 
"that  she  had  lost  a  little  one,"  "A.  B.  is  a  credit  to  her,"  the  said  A.  B.  being  noto- 
riously an  incontinent  person,  and  "  she  better  be  listening  to  the  report  about  herself 
losing  a  little  one,"  it  was  held,  that  it  was  sufficient  to  plead  that  plaintiff  was  an 
incontinent  woman.  (Snow  v.  Witcher,  9  Ired.  346.)  But  the  justification  should 
extend  to  every  part  of  the  defamatory  matter  which  could  by  itself  form  a  substan- 
tive ground  of  action.     (Cooper  v.  Lawson,  8  Adol.  <fe  Ell.  751.) 

2  Clark  v.  Munsell,  6  Mete.  373,  ante  in  note  1  p.  244. 

3  Cooper  v.  Greely,  1  Denio,  347. 

*  Creebnan  v.  Morley,  1  Blackf.  281. 


340  DEFENSES.  [Ch.  IX. 

defendant,  in  a  letter  addressed  to  Q.,  falsely  wrote  and 
published  of  plaintiff  the  words,  "I  conceive  there  is 
nothing  too  base  for  him  to  be  guilty  of."  A  plea  in 
justification,  that  plaintiff  signed  and  delivered  to  defend- 
ant an  I.  O.  IT.,  and  afterwards,  on  having  sight  thereof, 
falsely  and  fraudulently  asserted  that  the  signature  was 
not  his ;  and  that  the  alleged  libel  was  written  and  pub- 
lished solely  in  reference  to  this  transaction,  was,  on  de- 
murrer, held  a  sufficient  justification,  as  the  alleged  libel 
must  be  understood  with  reference  to  the  subject-matter.1 
The  defendant,  a  railway  company,  published  a  notice  that 
plaintiff  had  been  convicted  of  an  offense  against  its  by- 
laws, and  fined  a  certain  sum,  with  the  alternative  of  three 
weeks'  inrprisonment  in  case  of  non-payment ;  in  fact,  the 
alternative  was  two  weeks'  imprisonment;  held,  that  it 
was  a  question  for  the  jury  whether  the  statement  was 
substantially  true.2  So  where  the  charge  was  that  the 
plaintiff  had  been  convicted  and  sentenced  to  a  fine  or 
imprisonment  with  hard  labor,  a  plea  that  plaintiff  had 
been  convicted  and  sentenced  to  a  fine  or  imprisonment, 
held  a  sufficient  justification.3 

§  214.  To  justify  a  charge  of  perjury  on  the  ground  of 
truth,  it  must  not  only  be  alleged  that  the  plaintiff's  testi- 
mony was  false,  but  that  it  was  wilful  or  corrupt.4   It  would 


1  Tighe  v.  Cooper,  21  Jur.  716 ;  7  Ell.  &  Bl.  639.  In  this  case,  Crompton,  J.,  said  : 
"I  recollect  being  satisfied,  early  in  my  professional  life,  that  I  could  justify  calling  a 
man  '  a  rugged  Russian  bear,'  by  showing  that  his  manners  were  rough."  The  plea 
must  justify  according  to  the  sense  given  by  the  plaintiff.  (Fidler  v.  Delavan,  20 
Wend.  57.)  If  the  justification  does  not  cover  the  whole  defamation,  the  plaintiff  is 
entitled  to  damages  for  the  part  not  justified.  (Cooban  v.  Holt,  cited  2  Stark.  Ev. 
643,  note  2.) 

2  Alexander  v.  N.  E.  R'way  Co.,  11  Jur.  N.  S.  619. 

3  Gwynn  v.  So.  E'ern  R'way,  18  Law  Times,  N.  S.  738. 

4  Mitchell  v.  Borden,  8  Wend.  570;  Clark  v.  Dibble,  16  Wend.  601 ;  Gage  v.  Rob- 
inson, 12  Ohio,  250;  Bissell  v.  Cornell,  24  Wend.  354;  Gorton  v.  Keeler,  51  Barb. 
475. 


§    215.]  BELIEF.  341 

be  no  justification  of  such  a  charge  to  allege  that  the  false 
testimony  was  given  by  mistake.1 

§  215.  A  justification  on  the  ground  of  truth  must 
justify  in  the  sense  imputed  by  the  innuendo.2  For  the 
reason  that  the  plea  admits  the  innuendo.3  Thus,  where 
the  plaintiff,  an  apothecary,  was  charged  with  administer- 
ing medicine  to  a  child,  with  an  innuendo  that  he  had 
feloniously  killed  the  child,  a  plea  that  the  plaintiff  did 
injudiciously,  indiscreetly  and  improperly,  and  contrary  to 
his  duty,  administer  medicine  to  the  child,  and  that  the 
death  of  the  child  was  caused  or  accelerated  by  the  said 
medicine,  was  held  bad  on  demurrer,  as  confessing  without 
justifying  the  innuendo.4  But  where  the  language  is  action- 
able independently  of  the  meaning  imputed  by  the  innu- 
endo, there  the  innuendo  need  not  be  justified,  as  where 
the  charge  was  that  plaintiff  was  tried  at  petty  sessions 
for  traveling  on  a  railway  without  first  paying  his  fare, 
and  convicted  in  a  penalty  and  costs,  and  there  was  an 
innuendo  that  the  plaintiff  had  attempted  to  defraud  the 
company ;  a  plea  that  plaintiff  was  so  convicted,  without 
attempting  to  justify  the  innuendo,  was  held  sufficient.  The 
whole  gist  of  the  charge  was  justified.5 


1  Fero  v.  Ruscoe,  4  N.  Y.  162 ;  Torrey  v.  Field,  10  Verm.  353  ;  The  State  v.  Burn- 
ham,  9  N.  namp.  34 ;  Jenkins  v.  Cockerham,  1  Ired.  309.  It  is  not  a  justification  of 
a  charge  of  false  swearing  that  the  defendant  had  good  reason  for  publishing  the 
words,  and  made  the  publication  from  good  motives  and  justifiable  ends.  (Thompson 
v.  Bowers,  1  Doug.  321.) 

2  Mitchell  v.  Borden,  8  Wend.  570;  Clarke  v.  Dibble,  16  Wend.  601;  Gage  v . 
Robinson,  12  Ohio,  250;  Clarke  v.  Taylor,  2  Bing.  N.  C.  654. 

3  Fidler  v.  Delavan,  20  Wend.  67. 

4  Edsall  v.  Russell,  2  Dowl.  N.  S.  641  ;  5  Sc.  N.  S.  801.  Where  an  intent  is 
charged,  it  must  be  justified.  (Gage  v.  Robinson,  12  Ohio,  250;  Riggs  v.  Denniston, 
3  Johns.  Cas.  198.)  "If  the  defendant  justify  specially  it  will  not  be  necessary  for 
him  in  his  plea  to  deny  the  innuendoes  and  epithets  contained  in  the  declaration,  for  if 
the  fact  be  justified  ( Astley  v.  Younge,  2  Burr.  807),  the  motive,  intention,  and  manner 
are  immaterial"  as  regards  the  plea.  (1  Stark,  on  Sland.  476);  and  see  next  note,  infra. 

6  Biggs  v.  G't  East.  R'way,  18  Law  Times,  N.  S.  482. 


342  DEFENSES.  [Ch.  IX. 

§  210.  Although  the  truth  of  the  defamatory  matter  is 
admitted  as  a  defense,  a  mere  belief  in  the  truth  of  the 
matter  published,  however  honestly  that  belief  may  be 
entertained,  will  not  of  itself  constitute  any  defense^ 
Belief  or  disbelief  in  the  truth  of  the  matter  published 
can  be  material  only  upon  an  inquiry  into  the  intent  with 
which  a  publication  is  made  (§  90). 

§  217.  Legislative  proceedings  are  privileged.  It  is 
obviously  necessary  to  the  efficient  discharge  of  the  duties 
of  a  legislator,  that  in  the  performance  of  those  duties  he 
should  be  allowed  unlimited  license  of  speech,  and  be  un- 
fettered with  any  apprehension  of  being  made  responsible 
for  the  consequences  of  any  utterances  he  may  deem  it  fit- 


1  However  honestly  the  party  who  publishes  a  libel  believes  it  to  be  true,  if  it  is 
untrue  iu  fact,  the  law  implies  malice,  unless  the  occasion  justifies  the  act ;  and 
whether  the  occasion  justifies  the  act,  is  a  question  of  law.  (Darby  v.  Ouseley,  1 
Hurl.  &  N.  1 ;  Holt  v.  Parsons,  23  Texas,  9.)  A  bona  fide  belief  in  the  truth  of  the 
alleged  libel  is  no  defense.  (Campbell  v.  Spottiswoode,  3  Best  <fe  Smith,  769  ;  8  Law 
Times  Rep.  N.  S.  201 ;  and  see  Moore  v.  Stevenson,  27  Conn.  14 ;  Woodruff  v.  Rich- 
ardson, 20  Conn.  238;  Fry  v.  Bennett,  3  Bosw.  200;  Smart  v.  Blanchard,  42  X. 
Hamp.  137;  Kerr  v.  Force,  3  Cr.  C.  C  8;  Watson  v.  Moore,  2  Cush.  133 ;  HotchMsa 
v.Porter,  30  Conn.  314;  Gilmer  v.  Ewbank,  13  111.  271;  Duncan  v.  Brown,  15  B. 
Monr.  186  ;  Grimes  v.  Coyle,  6  B.  Monr.  301.)  But  belief  in  the  truth  may  be  shown 
in  mitigation  (Huson  v.  Dale,  19  Mich.  35  ;  approving  Farr  v.  Rusco,  9  Mich.  353  ; 
and  overruling  Thompson  v.  Bowers,  1  Douglas,  321.)  Defendant  cannot  show  that 
it  was  generally  admitted  for  many  years  that  the  plaintiff  was  guilty  of  the  crime 
charged.  (Long  v.  Brougher,  5  Watts,  439);  or  that  plaintiff  was  reported  by  her 
own  sister  to  be  guilty  of  the  offense  imputed.  (Smith  v.  Buckecker,  4  Rawle,  295.) 
No  suspicion,  however  strong,  will  amount  to  a  justification.  (Powell  v.  Plunkettj 
Cro.  Car.  52;  Moyer  v.  Pine,  4  Mich.  409.)  Common  fame  is  no  ground  for  justifying 
an  extra  judicial  charge.  (Hutt.  13;  Bridg.  62;  Brownlow,  2.)  A  defendant  cannot 
justify  a  charge  of  theft  by  showing  that  he  has  just  grounds  for  believing  the  plain- 
tiff to  be  a  very  dishonest  man.  (Woodruff  v.  Richardson,  20  Conn.  238.)  The  pub- 
lication in  a  newspaper  of  rumors  is  not  justified,  but  may  be  mitigated,  by  the  fact 
that  such  rumors  existed.  (Skinner  ads.  Powers,  1  Wend.  451,  §  411, post.)  In  mit- 
igation of  damages,  in  an  action  for  a  libel,  the  defendant  was  allowed,  under  the 
general  issue,  to  show  that  he  copied  the  statement  from  another  newspaper;  but  was 
not  allowed  to  show  that  it  appeared  concurrently  in  several  other  newspapers. 
(Saunders  v.  Mills,  6  Bing.  213;  3  M.  &  P.  520.)  In  an  action  for  a  libel  in  the  de- 
fendant's newspaper,  held  that  he  could  not  show  that  it  was  copied  from  another 
paper,  against  the  proprietor  of  which  damages  had  been  recovered,  but  he  might 
show  that  he  had  omitted  many  of  its  parts  reflecting  on  the  plaintiff.  (Creevy  v. 
Carr,  7  C.  <fe  P.  64.)     See  ante,  note  3,  p.  322. 


§217.]  BELIEF.  343 

ting  and  necessary  to  make  in  his  official  capacity ;  accord- 
ingly we  find  it  everywhere  wisely  provided  that  for  what 
a  legislator  says  as  a  legislator,  and  within  the  legislative 
chamber,  he  can  never  be  challenged  in  any  tribunal  other 
than  the  body  of  which  he  is  a  member.  This  immunity, 
enjoyed  by  the  members  of  the  British  Parliament  in  vir- 
tue of  custom  and  statutes,  is  guaranteed  to  members  of 
Congress  by  the  Federal  Constitution,  and  to  members  of 
the  State  legislatures  by  State  constitutions  and  statutes.1 
The  proceedings  of  the  English  Parliament  are  in  theory 
conducted  with  closed  doors,  and  although  in  fact  report- 
ers and  others  are  usually  present  during  the  debates,  yet 
persons  so  present  are  supposed  to  be  concealed,  and  the 
fact  of  their  presence  to  be  unknown  to  the  House.  All 
persons  not  members  are  liable  to  be  expelled  on  a  mem- 
ber or  the  clerk  of  the  House  rising  and  stating,  "Mr. 
Speaker,  there  are  strangers  present."  This  intimation  is 
always  made  prior  to  a  division,  and  all  persons  not  mem- 
bers, nor  officers  of  the  House,  without  exception,  retire. 
It  is  a  part  of  the  same  theory  which  forbids  the  publica- 
tion, unless  by  order  of  the  House,  of  any  of  its  proceed- 
ings, and  which  makes  any  publication  of  its  proceedings 
without  such  order  a  criminal  contempt.2     Congress  has 


1  2  Hume's  Hist,  of  England,  280 ;  Statutes,  4  Hen.  VIII ;  1  W.  &  M.  st.  2,  ch.  2. 
Members  of  the  House  of  Lords,  as  such,  cannot  be  guilty  of  a  conspiracy  to  libel. 
(Ex-parte  Wason,  Law  Rep.  IV,  Q.  B.  573.)  The  constitution  of  New  York  (Const,  of 
1846,  Art.  Ill,  §  12)  enacts,  "  For  any  speech  or  debate  in  either  house  of  the  legis- 
lature, the  members  shall  not  be  questioned  in  any  other  place."  This  provision  is 
repeated  in  exactly  the  same  words.    (1  Rev.  Stat,  of  New  York,  154,  §11.) 

A  member  of  the  legislature  is  not  liable  to  an  action  of  slander  for  words  spoken 
in  the  discharge  of  his  official  duties,  even  though  spoken  maliciously.  (Coffin  v. 
Coffin,  4  Mass.  1,  31.  But  see  Commonwealth  v.  Blanding,  3  Pick.  310,  314.)  But 
this  privilege  is  not  extended  to  words  spoken  unofficially,  though  in  the  legislative 
hall,  and  while  the  legislature  is  in  session.  (Coffin  v.  Coffin,  4  Ma;s.  1.)  Thus  where 
one  member  informally  communicated  to  another,  within  the  representatives'  hall, 
and  while  the  house  was  in  session,  that  the  statement  which  he  had  just  made  to  the 
house  upon  some  question  lately  under  consideration,  and  likely  again  to  be  acted 
upon,  was  founded  upon  misrepresentation,  and  that  his  informant  was  a  person  not  to 
be  believed,  using  some  slanderous  expression  in  regard  to  the  informant,  it  was  held, 
that  the  slander  was  not  privileged  by  the  place  or  occasion,     (lb.) 

8  "When  Sir  Bartholomew  Shower  published  his  collection  of  decisions  in  the  House 


344  DEFENSES.  [CL  IX. 

never  asserted,  at  least  as  directly  as  the  British  Parlia- 
ment, the  right  to  sit  with  closed  doors,  or  to  control  the 
publication  of  its  proceedings.  The  twelfth  rule  of  the 
House  of  Representatives  provides  for  clearing  the  galle- 
ries in  cases  of  disorderly  conduct,  and  the  fourteenth  rule 
provides  for  the  admission,  by  the  Speaker,  of  stenograph- 
ers wishing  to  take  down  the  debates.1  The  immunity 
accorded  to  speech  in  legislative  assemblies  extends  to  any 
record  such  assemblies  may  make  of  their  proceedings,  and 
to  all  documents  read  in  such  assemblies ;  it  extends  also 
to  all  petitions  or  addresses  presented  to  the  legislature, 
and  to  such  a  prior  publication  of  any  such  documents  as 
may  be  necessary  to  their  preparation  and  completeness.2 

of  Lords,  still  cited  as  "  Shower's  Parliamentary  Cases,"  the  publication  wa3  voted  to 
be  a  breach  of  privilege,  and  the  House  of  Lords  resolved :  "  That  it  is  a  breach  of 
privilege  of  this  house  for  any  person  whatsoever  to  print  or  publish  in  print,  any- 
thing relating  to  the  proceedings  of  this  house,  without  the  leave  of  this  house." 
Lord  Hardwicke,  in  1762,  threatened  to  put  this  resolution  in  force  against  Sir 
Michael  Foster,  for  introducing,  without  leave,  into  his  treatise  on  Common  Law,  some 
decisions  of  the  House  of  Lords.  So,  too,  it  was  a  standing  order  of  the  House  of 
Lords,  until  rescinded  on  the  motion  of  Lord  Campbell,  to  enable  him  with  safety  to 
publish  his  Lives  of  the  Lord  Chancellors,  "  that  no  one  presume  to  publish  the  lives 
of  any  lords,  spiritual  or  temporal,  deceased,  without  the  permission  of  their  heirs  or 
executors."     (VI  Camp.  Lives  Chanc.  221.) 

1  The  constitution  of  the  State  of  New  York  of  1111,  §  15,  enacted  that:  The 
doors  both  of  the  Senate  and  Assembly  shall  at  all  times  be  kept  open  to  all  persons, 
except  when  the  welfare  of  the  State  shall  require  their  debates  to  be  kept  secret. 
*  *  This  provision  was  repeated  in  the  constitution  of  1823,  Art.  1,  §  4,  but  not  in 
the  constitution  of  1846.  The  Revised  Statutes  of  New  York  (1  R.  S.  153,  §  4)  pro- 
vide :  The  doors  of  each  house  are  to  be  kept  open,  except  when  the  public  welfare 
shall  require  secresy.  The  Constitution  of  the.  United  States,  Art.  I,  §  5,  subd.  3, 
provides :  That  each  house  (of  the  legislature)  shall  keep  a  journal  of  its  proceedings, 
and,  from  time  to  time,  publish  the  same,  excepting  such  parts  as  may  in  their  judg- 
ment require  secresy.  The  constitutions  of  New  York  of  1777,  §  35,  and  of  1823, 
Art.  I,  §  4,  required  both  branches  of  the  State  legislature  to  keep  a  journal  of  their 
proceedings,  and  to  publish  the  same;  and  the  Revised  Statutes  of  New  York  (1  R. 
S.  153,  §  3)  enact:  Each  house  is  required  to  keep  a  journal  of  its  proceedings,  and 
to  publish  the  same,  except  such  part  as  may,  in  its  judgment,  require  secresy. 

2  Where  a  petition  to  Parliament,  containing  defamatory  matter,  was  referred  to 
a  committee,  held  that  no  action  would  lie  for  printing  and  distributing  a  number  of 
copies  for  the  use  of  the  members.  (Lake  v.  King,  1  Mod.  58;  1  W.  Saund.  131  b.) 
See  post,  note  2  p.  351.  The  English  House  of  Commons  resolved  that  it  was  a  breach 
of  the  privilege  of  that  house  to  sue  at  law  for  a  libel,  supposed  to  be  contained  in  a 
petition  to  that  body.     See  1  Salk.  19;  3  Salt  17;  Holt,  524. 


§§  218-19.]  LEGISLATIVE    PROCEEDINGS.  345. 

§  218.  The  immunity  which  is  accorded  to  a  legislator 
while  in  the  performance  of  his  duties,  does  not  extend  so 
far  as  to  justify  his  repeating,  not  in  his  official  capacity, 
any  defamatory  matter  he  may  have  written  or  spoken 
while  in  the  discharge  of  his  duties ;  and  therefore  for  any 
repetition  by  a  legislator  outside  of  the  legislative  cham- 
ber of  what  he  may  have  spoken  within  it,  he  is  liable  in 
like  manner  as  any  other  individual.1 

§  219.  The  English  Parliament,  as  does  Congress  and 
our  State  legislatures,  print  for  the  use  of  their  members  re- 
ports of  their  proceedings  in  the  bodies  of  their  Houses 
and  in  their  committees,  and  these  are  privileged.  The 
English  Parliament  also  print  additional  copies  for  sale  to 
the  public.  These  additional  copies  are  printed  by  the 
printer  to  the  Parliament  Houses,  at  the  public  expense, 
and  sold  by  such  printer,  the  proceeds  of  the  sales  being 
returned  to  the  public  treasury.  The  publication,  in  this 
manner,  of  additional  copies  of  reports  to  the  House  of 
Commons  was  held  by  the  Court  of  Queen's  Bench  not  to 
be  privileged,  and  where  such  a  report  so  printed  and 
sold  contained  defamatory  matter,  the  printer  and  pub- 


1  The  defendant,  in  a  speech  in  the  House  of  Lords,  accused  the  prosecutor  (an 
attorney)  of  improper  conduct  in  his  profession.  This  speech  the  defendant  after- 
wards printed  in  several  newspapers.  For  this  publicatiou  an  information  was  filed 
against  the  defendant,  and  he  was  convicted,  the  publication  being  held  not  to  be 
privileged.  Lord  Kenyon  said  "  That  a  member  of  Parliament  had  certainly  a  right 
to  publish  his  speech,  but  that  speech  should  not  be  made  a  vehicle  of  slander 
against  any  individual;  if  it  was,  it  was  a  libel."  (Rex  v.  Lord  Abinger,  1  Esp.  226  ; 
Peake  Cas.  310.)  In  Rex  v.  Creevy,  1  Mau.  &  S.  278,  the  defendant,  a  member  of 
the  House  of  Commons,  had  made  a  speech  in  his  place  in  Parliament  containing  a 
charge  against  an  individual.  An  incorrect  report  of  this  speech  having  been  pub- 
lished, the  defendant  procured  the  publication  of  a  correct  version  of  his  speech;  this 
publication  was  held  not  to  be  privileged.  Semble,  a  bona  fide  publication  by  a  mem- 
ber of  the  House  of  Commons  to  his  constituents,  of  a  speech  delivered  by  him  in  his 
place  in  Parliament,  is  privileged.  (Davison  v.  Duncan,  7  Ell.  &  Bl.  229;  ."  L'd 
Campbell's  Lives  of  the  Chief  Justices,  167.)  Home  Tooke  applied  for  a  criminal  in- 
formation against  a  bookseller  for  publishing  a  copy  of  a  report  made  by  a  committee 
of  the  House  of  Commons.  The  rule  was  discharged,  partly  because  the  report  did 
not  appear  to  bear  the  meaning  imputed  to  it,  and  partly  because  the  court  doubted 
its  right  to  interfere.     (Rex  v.  Wright,  8  Term  Rep.  293.) 


346  DEFENSES.  [Ch.  IX. 

lislier  were  held  to  be  liable  therefor  in  an  action  for  libel.1 
In  consequence  of  that  decision  a  statute  was  passed  legal- 
izing the  publication  by  the  orders  of  the  Parliament 
Houses  of  such  reports,  papers,  votes,  or  proceedings,  as 
either  house  should  deem  necessary.2  In  the  State  of  New 
York,  the  publication  in  a  newspaper  of  legislative  pro- 
ceedings .and  debates  is,  by  statute,  conditionally  privi- 
leged.3 Until  quite  recently,  it  was  generally  supposed 
that  the  publication  of  defamatory  matter  in  a  report  of 
the  proceedings  in  Parliament  was  not  justifiable  on  the 
ground  of  its  being  a  fair  report,  but  from  the  decision  in 
Wason  v.  Walter,  it  seems  that  such  a  publication  is  justi- 
fied by  the  fairness  of  the  report.4 


1  In  Stockdale  v.  Hansard,  9  Adol.  &  El.  1 ;  2  M.  &  Rob.  9  ;  3  Per.  &  D.  330 ;  7 
Car.  &  P.  731,  it  was  held  to  be  no  defense,  in  an  action  for  libel,  that  tbe  defamatory 
matter  was  contained  in  a  report  of  parliamentary  proceedings  and  was  published  by 
order  of  the  House  of  Commons.  As  to  this  case  see  May's  Law  and  Practice  in 
Parliament,  156,  and  Report  to  the  House  of  Commons  of  a  Select  Committee  on  the 
Publication  of  Printed  Papers,  May,  1837,  with  an  Appendix  of  the  orders  and  pro- 
ceedings of  the  two  Houses  of  Parliament  relating  to  the  publication  of  Parliamentary 
Reports  and  papers  and  review  of  the  legal  authorities  upon  the  jurisdiction  of  Par- 
liament on  matters  of  privilege. 

a  3  and  4  Vict.  ch.  9.  Defendant  may,  under  the  general  issue,  prove  an  order  to 
publish,  and  the  absence  of  malice,  which  entitles  him  to  a  verdict. 

3  Laws  of  New  York,  1854,  ch.  130.  See  post,  Freedom  of  the  Press,  §  252,  and 
note  to  §  229. 

4  Lord  Campbell:  "  I  think  it  should  be  declared  and  enacted  that  a  fair  and  faith- 
ful report  of  proceedings  in  either  House  of  Parliament,  from  which  strangers  are  not 
excluded,  is  justifiable,  and  cannot  be  made  the  subject  of  any  action  or  prosecution." 
Lord  Denman :  "  I  cannot  help  entertaining  a  strong  opinion  that  no  faithful  report 
of  a  debate  ought  to  expose  the  publisher  to  an  action  or  to  a  criminal  proceeding. 
As  the  law  now  stands,  the  fact  of  the  report  being  a  faithful  one  is  nothing  like  a 
justification,  but  it  ought  to  be."  (Report  from  Committee  of  House  of  Lords  on  the 
Law  of  Defamation  and  Libel,  July,  1843.) 

In  the  case  of  Wason  v.  Walter,  reported  in  the  London  Times  of  19th,  20th,  and 
21st  December,  1867.  The  plaintiff,  a  member  of  the  bar,  sent  a  petition  to  Earl 
Russell  for  presentation  to  the  House  of  Lords,  praying  an  inquiry  into  a  complaint 
he  alleged  against  the  Lord  Chief  Baron  of  the  Court  of  Exchequer.  In  the  debate 
on  the  presentation  of  this  petition,  the  friends  of  the  Lord  Chief  Baron  cast  imputa- 
tions upon  the  plaintiff.  A  report  of  this  debate,  and  a  leading  article  in  reference 
thereto,  appeared  in  the  London  Times,  of  which  the  defendant  was  the  proprietor. 
For  the  publication  of  this  report  and  leading  article  the  action  was  brought.  The 
defenses  were,  that  the  report  was  a  true  report,  and  that  the  leading  article  was  a 


§  220.]  JUDICIAL    PROCEEDINGS.  347 

§  220.  Defamatory  matter  published  in  or  to  a  court 
of  criminal  jurisdiction  may  constitute  the  wrong  called 
"malicious  prosecution"1  but  never,  it  would  seem,  the 
wrong  called  slander  or  libel.  Thus,  where  a  defendant 
went  before  a  justice  of  the  peace,  and  demanded  a  war- 
rant against  the  plaintiff  for  stealing  his  ropes,  the  justice 
said,  "  Be  advised,  and  look  what  you  do,"  and  the  defend- 
ant replied,  "  I  will  charge  him  with  flat  felony,  for  steal- 
ing my  ropes  from  my  shop ;  "  in  an  action  of  slander  for 
speaking  these  words,  the  court  agreed  that  the  words 
being  spoken  to  a  justice  of  the  peace,  on  an  application 
for  a  warrant  which  was  lawful,  would  not  support  an 


just  and  fair  comment  upon  the  proceedings  in  the  debate.  It  was  admitted  that  the 
matter  was  defamatory  in  its  character,  and  the  only  questions  were,  (1)  Was  it  a  de- 
fense to  say  the  matter  was  a  correct  report  of  a  proceeding  in  Parliament?  and  (2) 
Was  it  the  subject  of  criticism?  The  Lord  Chief  Justice  charged  the  jury:  The  re- 
port being  faithful  and  correct,  "  I  am  prepared  to  direct  you,  in  point  of  law,  that 
the  report  is  a  privileged  communication,  and  one  which  is  not  the  subject-matter  of 
an  action."  And  after  stating  that  the  question  was  then  for  the  first  time  directly 
presented  for  adjudication,  and  that  some  dicta  supported  his  ruling,  he  added :  "  The 
cases  have  not  hitherto  gone  the  length  of  establishing  the  law  I  am  now  layino- 
down,  but  I  find  nothing  which  to  my  mind  satisfactorily  contradicts  the  position  I 
adopt."  And  again :  "  There  may  be  dicta  which  may  possibly  have  a  different 
tendency,  but,  I  think,  with  the  larger  and  more  enlightened  views  relative  to  the 
law  of  libel  which  have  gradually  developed  themselves  in  our  day,  the  time  has 
come  when  the  proposition  I  have  put,  ought  to  be  affirmatively  announced."  As  to 
the  second  point,  the  charge  was :  "lam  of  opinion  that  the  debate  in  the  House  of 
Lords  upon  the  plaintiffs  petition  was  a  matter  of  public  interest  and  concern  upon 
which  a  public  writer  was  perfectly  justified  in  making  such  comments  as  the  circum- 
stances warranted."  The  plaintiff  tendered  a  bill  of  exceptions  to  this  charge.  The 
jury  gave  a  verdict  for  the  defendant.  A  motion  for  a  new  trial  was  denied.  (Law 
Rep.  IV,  Q.  B.  73.)  The  Lord  Chief  Justice  has  shown  by  his  charges  in  all  the 
cases  of  libel  tried  before  him,  that  he  favors  the  greatest  latitude  of  newspaper 
criticism.  For  his  views  on  the  right  of  criticism,  reference  may  be  had,  in  addition 
to  the  above  case,  to  the  case  of  Dr.  Hunter  v.  The  Publisher  of  the  Pall  Mall  Gazette, 
printed  in  pamphlet  farm,  and  in  the  Pall  Mall  Gazette  of  Nov.  27,  28,  29,  30,  Dec.  1, 
3, 18G6.     Same  case  Hunter  v.  Sharp,  15  Law  Times,  N.  S.  421 ;  4  Fost.  &  F.  983. 

1  It  is  "  malicious  prosecution,"  and  not  what  we  term  "  slander  or  libel,"  which 
corresponds  to  "  calumny"  in  the  civil  law.  In  the  Roman  law,  calumny  signified  an 
nnjust  prosecution  or  defense  of  a  suit,  and  a  calumniator  was  one  who  unjustly  ac- 
cused others  in  a  court  of  law.  See  Domat's  Civil  Law,  B'k  III,  tit.  5,  §  2,  div.  14, 
note,  edit,  by  Stralian.  Calumny  is  still  employed  in  this  sense  in  the  courts  of  Scot- 
land, and  in  the  ecclesiastical  and  admiralty  courts  of  England.  See  Dunlap's  Adtn. 
Pra.  291,  and  post,  note  to  §  221. 


348  DEFEASES.  [Ch.  IX. 

action,  for  if  they  would,  no  other  would  come  to  a  justice 
of  the  peace  to  inform  him  of  a  felony.1  Every  one  hav- 
ing reasonable  and  probable  grounds  for  suspecting  that  a 
crime  has  been  committed,  has  the  right  to  communicate 
his  suspicions  to  the  magistrate  having  jurisdiction  of 
criminal  offenses.2  The  existence  of  reasonable  and  prob- 
able ground  for  the  suspicion  is  absolutely  necessary  to 
create  this  right;  a  communication  made  without  these 
grounds  is  inexcusable,  and  is  a  malicious  prosecution,  for 
which,  however,  no  remedy  can  be  had  in  an  action  for 
slander  or  libel.  This  results  from  the  rules  of  pleading 
and  the  classification  of  actions  into  several  different  forms 
(§  53)  or  causes  of  action,  and  operates  even  in  those 
States  where  it  has  been  expressly  enacted  that  all  forms 
of  action  are  abolished.3 

§  221.  The  right  of  appealing  to  the  civil  tribunals  is 
more  extensive  than  the  right  of  appealing  to  the  criminal 
tribunals ;  for,  as  to  the  former,  every  one  has  the  right, 
with  or  without  reasonable  cause  for  so  doing,  to  prefer 
his  complaint  to  them ; i   and  whatever  he  may  allege  in 


1  Ram  v.  Larnley,  Hutt.  113.  An  action  of  slander  does  not  lie  for  a  charge  of  a 
criminal  offense  made  to  a  magistrate  upon  which  a  warrant  issues,  although  the  ac- 
cused be  discharged  after  examination.  (Schock  v.  McChesney,  2  P.  A.  Browne's  R. 
6,  App;  Cohen  v.  Morgan,  6  D.  &  R.  8 ;  2  Stark.  Sland.  72,  note  t.)  And  see  post,  note 
to  §  221. 

2  Lester  v.  Ferryman,  Law  Rep.  v,  Ex.  365,  reversing  s.  c.  Law  Rep.  iii,  Ex.  197. 

3  This  result  is  brought  about  as  thus:  If  the  plaintiff  shows  on  the  face  of  his 
(declaration)  complaint  that  the  publication  was  made  to  a  court  of  criminal  jurisdiction, 
he  does  not  show  a  cause  of  action  unless  he  alleges  inter  alia  that  the  publication  was 
made  without  reasonable  or  probable  cause.  But  if  the  (declaration)  complaint  does 
not  disclose  that  the  publication  was  made  to  a  court  of  criminal  jurisdiction,  then  it 
would  be  a  complete  defense  that  the  publication  was  made  to  a  court  of  criminal 
jurisdiction ;  which  defense  could  not  be  avoided  by  replying  or  proving  on  the  trial 
that  the  publication  was  without  reasonable  or  probable  cause,  as  that  would  be  in  the 
one  case  a  departure,  in  the  other  a  varianee.     See  Torrey  v.  Field,  10  Verm.  353. 

4  "No  punishment  was  ever  nppointed  for  a  suit  in  law,  however  it  be  false  and 
for  vexation."  (6  RobiDson's Prac.  897,  citing  numerous  authorities.)  But  in  Churchill 
v.  Siggers  (3  El.  <fe  Bl.  929),  it  is  said:  "  One  man  has  a  right  to  sue  another,  but  if 
one  sue  another  with  malice  and  without  reasonable  cause,  it  is  a  wrong."     And  see 


§  221.]  JUDICIAL    PROCEEDINGS.  349 

his  pleading  as  or  in  connection  with  his  grounds  of  com- 
plaint can  never  give  a  right  of  action  for  slander  or  libel. 
The  immunity  thus  enjoyed  by  a  party  complaining  ex- 
tends also  to  a  party  defending ;  whatever  one  may  allege 
in  his  pleading  by  way  of  defense  to  the  charge  brought 
against  him  or  by  way  of  counter-charge,  counter-claim,  or 
set-off.  can  never  sive  a  rio'ht  of  action  for  slander  or  libel. 
The  rule  as  thus  laid  down  has  been  doubted  by  some, 
and  it  has  been  said  that  if  the  tribunal  to  which  the  com- 
plaint be  made  has  no  jurisdiction  of  the  subject-matter, 
or  if  the  defamatory  matter  be  irrelevant  to  the  matter  in 
hand,  or  if  the  party  complaining  or  defending  maliciously 
inserts  defamatory  matter  in  his  pleading,  that  in  such 
cases  the  party  aggrieved  may  maintain  his  action  for 
slander  or  libel.1     Notwithstanding  the  dicta  to  the  con- 

Wren  v.  Weild,  Law  Rep.  iv,  736  Q.  B. ;  Collins  v.  Cave,  4  H  &  K  225 ;  6  Id.  131 ; 
Walker  v.  Goe,  3H.AN.  395;  4  Id.  351.  Inducing  a  pauper  to  bring  an  unfounded 
suit,  actionable.     (Pecbell  v.  Watson,  S  M.  &  W.  691,  cited  6H.&N,  133.) 

1  "  Words  that  might  otherwise  import  a  slander,  being  necessarily  used  in  a  judi- 
cial procedure,  cannot  subject  the  party  to  any  censure  or  penalty,  either  in  respect 
to  parties,  objections  to  'witnesses,  or  challenges  to  jurymen,  that  being  understood  as 
done  in  vindication  of  one's  right;  but  yet,  if  things  that  are  injurious,  quite  foreign 
to  the  cause,  be  charged  in  the  libel"  («".  e.,  the  summons  or  declaration),  "such  pur- 
suer shall  suffer  as  a  slanderer;  for  the  cover  of  a  judicial  procedure  cannot  protect 
him,  since  the  design  of  injuring  is  evident,  and  the  more  public  and  solemn  it  is,  the 
injury  is  so  much  the  more  heinous."  (Borthwick  on  Libel,  215,  n.)  See  Rex  v. 
Salisbury,  1  L'd  Raym.  341.  If  he  (a  party  appealing  to  a  court  of  competent  juris- 
diction) approaches  the  council  with  other  than  pure  views;  if  under  the  mask  of 
vindicating  his  violated  rights,  seeking  a  redress  for  injuries,  or  removing  a  public 
grievance,  he  calumniates  the  man  against  whom  he  prefers  his  complaint,  I  can  dis- 
cover no  legal  or  even  plausible  ground  to  shield  him  from  answering  as  a  libeller; 
and  the  opinion  of  the  court  from  4  Co.  14,  in  the  case  of  Buckley  v.  Wood,  I  consider 
as  very  apposite  to  this  case.  It  is  dictated  by  sound  principles  of  law  and  solid  sense. 
(The  Chancellor  in  Thorn  v.  Blanchard,  5  Johns.  525.)  No  action  of  slander  or  libel 
lies  for  defamatory  matter  in  a  pleading  (Vin.  Abr.  Act.  for  Words,  C,  a.  19;  Dawliug 
v.  Wenman,  2  Show.  446;  s.  c.  Dawling  v.  Venman,  3  Mod.  108  ;  Cox  v.  Smith,  1  Lev. 
119;  Brown  v.  Michel,  Cro.  Eliz.  500;  Hoar  v.  Wood,  3  Mete.  193;  Gosslin  v.  Cannon, 
1  Harrington,  3;  Briggs  v.  Byrd,  12  Ired.  377 ;  Shelford  v.  Gooding,  2  Jones,  N.  Car. 
175;  Lea  v.  White,  4  Sneed,  111),  as  in  a  bill  in  equity  (Forbes  v.  Johnson,  11  B. 
Monr.  48),  or  a  writ  or  declaration  (Hardin  v.  Cumstock,  2  A.  K.  Marsh.  480),  although 
the  charge  be  groundless.  (Hill  v.  Miles,  9  N.  Ilamp.  9.)  Where  one  addresses  a 
complaint  to  persons  competent  to  redress  the  grievance  complained  of,  no  action 
will  lie  against  him,  whether  his  statement  be  true  or  false,  or  his  motives  innocent 
or  malicious.   (Thorn  v.  Blanchard,  5  Johns.  508.)     And  it  is  at  least  doubtful  whether 


350  DEFENSES.  [Ch.  IX. 

fcrary,  we  believe  tlie  better  and  the  prevailing  opinion  to 
be,  that  for  any  defamatory  matter  contained  in  a  pleading 

a  want  of  jurisdiction  in  the  court  to  which  a  complaint  may  be  exhibited  will  make 
it  a  libel,  because  the  mistake  of  the  court  is  not  imputable  to  the  party  but  to  his 
counsel.  {Id.  ;  Lake  v.  King,  1  W.  Saund.  132 ;  Hawk.  PL  Cr.  73,  §  8 ;  contra,  Buck- 
ley v.  Wood,  4  Co.  14.)  That  was  the  case  of  a  bill  in  the  Star  Chamber ;  as  to  part 
of  the  matter  the  court  had,  and  as  to  part  had  not  jurisdiction ;  the  latter  being 
defamatory,  held  to  be  actionable.  So  no  action  lies  for  words  spoken  on  giving  a 
party  in  charge  to  a  constable,  or  in  preferring  a  complaint  to  a  magistrate.  (John- 
son v.  Evans,  3  Esp.  32.)  But  the  privilege  is  confined  strictly  to  communications 
which  are  necessar}'  for  obtaining  redress  or  forwarding  the  ends  of  justice.  Thus, 
where  A.  obtained  a  warrant  to  search  the  house  of  B.  for  goods  suspected  to  be 
stolen,  and  in  accompanying  the  officer  to  execute  the  warrant  told  the  officer  that  B. 
had  robbed  him,  held  that  this  statement  was  not  privileged.  (Dancaster  v.  Hewson, 
2  Man.  &  R.  176.)  See  Lathrop  v.  Hyde,  25  Wend.  448,  where,  under  a  similar  state 
of  circumstances,  the  action  was  held  maintainable,  the  jury  finding  express  malice. 
And  where  the  defendant,  before  making  any  complaint  to  a  magistrate,  made  a  charge 
against  the  plaintiff  to  C,  a  constable,  adding  that  he  should  require  C.  to  serve  the 
warrant  on  the  plaintiff,  held  this  was  not  a  privileged  communication ;  and  where, 
after  the  plaintiff  had  been  acquitted  before  the  justice,  the  defendant  repeated  the 
charge  against  the  plaintiff,  held  this  was  not  a  privileged  communication.  (Burlin- 
game  v.  Burlingame,  8  Cow.  141.)  Whatever  may  be  said  or  written  by  a  party  to  a 
judicial  proceeding,  or  by  his  attorney,  solicitor,  or  counsel  therein,  if  pertinent  and 
material  to  the  matter  in  controversy,  is  privileged,  and  lays  no  foundation  for  a 
private  or  public  prosecution.  The  protection  is  absolute,  and  no  one  shall  be  per- 
mitted to  allege  that  it  was  said  or  written  with  malice.  But  if  a  party  or  his  agent 
pass  beyond  the  prescribed  limit  to  asperse  or  vilify  another,  he  is  without  protec- 
tion, and  must  abide  the  consequences.  As  where  a  person  acting  as  counsel  in  a 
justice's  court  prepared  and  presented  a  declaration,  charging  the  defendant  with  a 
trespass,  and  alleging  that  the  defendant  was  "  reputed  to  be  fond  of  sheep,"  "  in  the 
habit  of  biting  sheep,"  and  that  "  if  guilty,  he  ought  to  be  shot ; "  held,  that  an  indict- 
ment therefor  as  a  libel,  alleging  malice,  was  good.  (Gilbert  v.  The  People,  1  Denio, 
41.)  If  a  party  institute  proceedings  in  a  court  of  justice  as  a  pretense,  and  merely 
to  promulgate  slander,  or  to  serve  any  other  improper  purposes,  an  action  may  be 
maintained  for  any  libellous  matter  contained  in  it.  (Hill  v.  Miles,  9  N.  Hamp.  9.) 
Where  words  accusing  the  plaintiff  of  felony  were  spoken  to  a  justice,  on  an  applica- 
tion for  a  warrant  for  felony,  the  question  whether  they  are  actionable  or  not  depends 
upon  the  question  whether  they  were  made  in  good  faith  or  not,  and  that  question  should 
be  left  to  the  jury.  (Bunton  v.  Worley,  4  Bibb,  38 ;  and  see  Marshall  v.  Gunter,  6  Rich. 
419;  Briggsw.  Byrd,  12  Ired.  377.)  A  letter  addressed  to  a  judge  before  whom  a 
proceeding  is  pending,  being  an  irregular  and  improper  proceeding,  is  not  privileged. 
(Gould  v.  Hulme,  3  C.  <fe  P.  625.)  For  such  a  letter  the  writer  may  be  punished  as  for  a 
contempt.  (Ex-parteTslacG'ill,  2  FowL  474;  Eagleton  v.  Duchess  of  Kingston,  8  Ves.  467.) 
An  affidavit  made  before  a  magistrate  to  enforce  the  law  against  a  person  accused  there- 
in of  a  crime,  does  not  subject  the  accuser  to  an  action  for  libel,  though  the  affidavit  be 
false  and  insufficient  to  effect  its  object.  (Hartsock  v.  Reddick,  6  Blackf.  255.)  Under 
statute  5  &  6  Vict.  c.  109,  the  vestry,  on  precept  from  the  justices,  are  to  return  a  list 
of  parishioners  liable  to  serve  as  constables,  and  to  give  notice  when  and  where  objec- 
tions will  be  heard  by  the  justices,  who  are  empowered  to  strike  out  of  the  list  the 


§  221. J  JUDICIAL    PROCEEDINGS.  351 

in  a  court  of  civil  jurisdiction,  no  action  for  libel  can  be 
maintained ;  the  power  j:>ossessed  by  courts  to  strike  out 
scandalous  matter  from  the  proceedings  before  them,1  and 
to  punish  as  for  a  contempt,  is  considered  a  sufficient  guar- 
antee against  the  abuse  of  this  privilege ; 2  but  whatever 
may  be  the  reason,  it  seems  certain  that  where  there  is  a 
perversion  of  the  right,  "  the  policy  of  the  law  steps  in 
and  controls  the  individual  right  of  redress  "  by  action  of 
libel.3 


names  of  persons  not  liable  to  serve.  Plaintiffs  name  was  inserted  in  the  list  of  per- 
sons liable  to  serve,  and  he  attended  a  session  to  be  sworn  in,  when  the  defendant,  a 
parishioner,  objected  to  him,  and  made  a  statement  to  the  justices,  in  the  presence  of 
other  persons,  imputing  perjury  to  plaintiff.  In  an  action  for  slander,  the  jury  found 
that  defendant  made  the  statement  bona  fide,  believing-  it  to  be  true.  Held,  that  the 
statement  was  properly  made  before  the  justices,  and  was  a  privileged  communica- 
tion. (Kershaw  v.  Bailey,  1  Exch.  743 ;  17  Law  Jour.  11.  129,  Ex.)  And  see  10  Law 
Times,  289  :  and  ante,  note  1,  p.  348  ;  and  post,  §  222. 

1  King  v.  Sea  Ins.  Co.,  26  Wend.  62;  Powell  v.  Kane,  5  Paige,  265,  affirming  2 
Edw.  Ch.  450;  Somers  v.  Torrey,  5  Paige,  54  ;  Downing  v.  Marshall,  37  N.  Y.  382. 

2  Henderson  v.  Broomhead,  4  Hurl.  &  N.  577;  Astley  v.  Younge,  2  Burr.  807. 
The  action  of  slander  does  not  lie  for  a  criminal  charge  made  by  an  affidavit  before 
a  magistrate,  the  plaintiff's  remedy  being  by  an  action  for  malicious  prosecution 
or  arrest,  or  for  maliciously  suing  out  a  search-warrant.  (Sanders  v.  Rollinson,  2 
Strobh.  447.)  No  proceeding  according  to  the  regular  course  of  justice,  will  make  a 
complaint  or  other  proceeding  amount  to  a  libel  for  which  an  action  can  be  main- 
tained; and  a  distress-warrant  is  a  proceeding  given  to  the  party  by  law,  for  the 
purpose  of  enforcing  a  legal  right,  and  comes  directly  within  the  reason  of  the  rule. 
(Bailey  v.  Dean,  5  Barb.  297.)  When  a  requisition  is  presented  for  the  arrest  of  a 
fugitive  from  justice,  with  the  proper  vouchers,  according  to  the  act  of  Congress,  it  is 
the  duty  of  the  executive  to  cause  the  fugitive  to  be  arrested  and  delivered  to  the 
agent  appointed  to  receive  him,  and  the  governor  has  no  power  to  entertain  an  appli- 
cation to  recall  or  modify  such  warrant,  and  an  affidavit  to  support  such  an  applica- 
tion is  not  a  privileged  communication.  (Hosmer  v.  Loveland,  19  Barb.  111.)  A 
complaint  to  the  grand  jury,  containing  a  charge  of  perjury,  is  privileged,  although 
before  its  presentation  it  was  exhibited  to  various  persons,  by  whom  it  Avas  signed. 
(Kidder  v.  Parkhurst,  3  Allen  (Mass.),  393.  See  Lake  v.  King,  1  Mod.  58  ;  Vauder- 
zee  v.  McGregor,  12  Wend.  545;  Sands  v.  Robison,  12  S.  &  M.  704.)  In  King  v. 
Townsend,  (12  Law  Rep.  126;  Appendix,  post),  which  was  an  action  for  libel  con- 
tained in  an  affidavit  voluntarily  made  by  the  defendant  before  a  magistrate — the 
report  does  not  state  under  what  circumstances — Abbott,  Ch.  J.,  said:  "This  action 
is  maintainable.  This  affidavit  is  not  a  judicial  proceeding,  for  it  ia  the  mere  volun- 
tary affidavit  of  the  defendant,  and  if  such  an  affidavit  were  to  be  considered  as  a 
judicial  proceeding,  and  therefore  privileged,  it  would  afford  a  very  easy  recipe  for  a 
libeller  to  traduce  the  characters  of  the  most  innocent  persons."  See  n.  2,  p.  352,  post. 

3  Thorn  v.  Blanchard,  5  Johns.  530. 


352  DEFENSES.  [CL  IX. 

§  222.  The  protection  which  is  accorded  to  a  pleading 
extends  to  every  other  proceeding  in  a  civil  action,1  and 
therefore  for  anything  contained  in  an  affidavit  made  in 
the  course  of  an  action  or  proceeding,  no  action  for  libel 
can  be  maintained.  Thus,  where  an  attorney  sued  his 
client  for  professional  services,  the  client  gave  notice, 
under  the  general  issue,  that  he  would  prove  that  the 
attorney  conducted  the  prosecution  and  defense  of  the 
several  suits,  and  attended  to  the  other  professional  busi- 
ness in  the  declaration  mentioned,  in  so  careless,  unskill- 
ful, and  improper  a  manner,  as  to  render  such  service  of 
no  value ;  the  attorney  moved  to  strike  out  the  notice  as 
false ;  the  client  resisted  this  motion  upon  an  affidavit  of 
his  own,  stating  that  the  attorney  had  revealed  confiden- 
tial communications  of  the  client  relative  to  a  portion  of 
the  business  to  a  third  person,  to  the  client's  prejudice. 
For  the  allegations  in  this  affidavit  the  attorney  brought 
an  action  of  libel  against  the  client,  and  in  his  declaration 
set  out  the  facts  to  the  effect  stated  above,  and  charged 
that  the  allegations  of  the  affidavit  were  false,  malicious, 
and  impertinent,  a  demurrer  to  the  declaration  was  sus- 
tained, and  it  was  held  that  the  affidavit  was  pertinent  to 
the  motion,  and  the  truth  or  falsity  could  not  be  ques- 
tioned in  an  action  for  libel.2 


1  An  attorney's  bill  of  costs,  although  delivered  under  a  judge's  order  is  not  a  legal 
proceeding,  and  is  not  within  the  above  rule.  The  plaintiff  having  obtained  an  order 
for  defendant,  his  late  attorney,  to  deliver  a  bill  of  costs,  defendant  delivered  a  bill 
headed,  "  Relative  to  your  defalcations,"  which  phrase  was  repeated  in  several  parts 
of  the  bill.  In  an  action  of  libel  for  this  statement,  it  was  claimed  that  the  bill,  hav- 
ing been  delivered  under  a  judge's  order,  was  a  legal  proceeding,  and  privileged,  but 
it  was  ruled  otherwise,  and  plaintiff  had  a  verdict.  (Bruton  v.  Downes,  1  Fost.  &  F. 
668.) 

2  Garr  v.  Selden,  4  N.  Y.  91,  rev'g  6  Barb.  416.  In  Doyle  v.  O'Doherty,  1  Carr. 
&  M.  418,  it  was  held  that  in  an  affidavit  in  answer  to  the  application  of  the  plaintiff 
for  a  criminal  information  against  the  defendant  for  sending  a  challenge,  the  defend- 
ant was  justified  in  stating  any  matters,  however  defamatory  and  otherwise  libellous 
to  prevent  the  court  making  the  rule  absolute,  and  that  no  action  could  be  sustained 
for  anything  contained  in  such  an  affidavit. 

A.,  in  opposing  a  motion  for  an  injunction  against  him,  contradicted  a  material 


§  223.]  witness.  353 

§  223.  The  due  administration  of  justice  requires  that 
a  witness  should  speak,  according  to  his  belief,  the  truth, 
the  whole  truth,  and  nothing  but  the  truth,  without  re- 
gard to  consequences,  and  he  is  encouraged  to  do  this  by 
the  consciousness  that,  except  for  any  willfully  false  state- 
ment of  a  material  fact,  which  is  perjury,  no  matter  that 
his  testimony  may  in  fact  be  untrue,  or  that  loss  ensues  by 
reason  of  his  testimony,  no  action  of  slander  can  be  main- 
tained against  him  for  any  statement  made  as  a  witness.1 
But  the  act  of  testifying  as  a  witness  must  be  either  in 
the  exercise  of  a  right  or  the  performance  of  a  duty,  and 
in  either  case  the  act  must  be  performed  in  good  faith 
(§  40),  or  it  will  be  wrongful.  If,  therefore,  one  avails 
himself  of  the  occasion  of  his  position  as  a  witness  "  to 
maliciously  answer  the  questions  put  to  him,"  in  bad  faith, 
and  with  a  knowledge  that  his  answer  is  not  pertinent  or 
relevant,  then  the  law  withdraws  the  protection  it  would 

fact  in  the  moving  affidavit  of  W.,  and  swore  that  W.  knew  its  falsity,  and  had  been 
guilty  of  perjury ;  held,  that  an  action  for  libel  could  not  be  maintained  by  W.  for  the 
allegation  in  A.'s  affidavit.  (Warner  v.  Paine,  2  Sandf.  195  ;  and  see  Suydam  v. 
Moffatt,  1  Sandf.  495.)  No  action  can  be  maintained  for  defamatory  matter  in  an 
affidavit  used  in  the  course  of  a  cause,  even  where  the  party  defamed  is  not  a  party 
to  the  cause.  (Henderson  v.  Broomhead,  4  Hurl.  &  N.  569;  Revis  v'.  Smith,  18  C.  B. 
126;  Dawling  v.  Venman,  3  Mod.  109;  Kennedy  v.  Hilliard,  10  Ir.  L.  R.  N.  S  195; 
1  Law  Times,  N.  S.  578.)     See  ante,  note  2,  p.  351. 

1  No  action  lies  for  words  spoken  as  a  witness.  ("Weston  v.  Dobniet,  Cro.  Jac.  432 ; 
Damport  v.  Sympson,  Cro.  Eliz.  520 ;  Astley  v.  Younge,  2  Burr.  807 ;  Harding  v. 
Bulman,  1  Brownl.  2  ;  Lewis  v.  Few,  5  Johns.  13.)  Although  the  words  are  spoken 
maliciously  and  without  reasonable  or  probable  cause,  and  the  plaintiff  has  suffered 
damage  in  consequence.  (Revis  v.  Smith,  18  C.  B.  126 ;  Rex  v.  Skinner,  Lofft,  55.)  The 
witness  is  not  bound  to  determine  the  materiality  of  the  evidence,  and  he  may  answer, 
without  liability  for  so  doing,  questions  put  to  him,  and  not  objected  to  or  not  ruled 
out  by  the  court.  The  fact  that  the  testimony  is  irrelevant,  or  that  the  witness  is 
influenced  by  malice,  will  not  render  him  liable  to  an  action  for  slander.  (Calkins  v. 
Sumner,  13  Wis.  193.)  In  Barnes  v.  McCrate,  32  Maine  (2  Red.),  442,  and  Perkins  v. 
Mitchell,  31  Barb.  461,  it  is  said  the  witness  is  not  liable  if  the  answers  are  pertinent 
and  responsive.  No  action  will  lie  against  a  witness  for  damage  sustained  by  the 
falsity  of  his  testimony  (Smith  v.  Lewis,  3  Johns.  157;  Grove  v.  Brandenburg,  7 
Blackf.  234;  Cunningham  v.  Brown,  18  Verm.  123;  Dunlap  v.  Gladding,  31  Maine, 
435);  as  where  an  action  was  brought  against  a  witness  for  swearing  that  a  jewel  was 
worth  no  more  than  £180,  whereas  it  was  worth  £500,  a  verdict  being  found  for  the 
plaintiff,  judgment  was  arrested.  (Damport  v.  Sympson,  Cro.  Eliz.  520 ;  see  cases 
collected  Vin.  Abr.,  Act.  on  the  Case  for  Deceit.)    No  action  lies  for  suborning  a  wit- 


354  •       DEFEASES.  [Ch.  IX. 

otherwise  have  afforded  him.1  Where  the  defendant,  a 
witness,  was  asked  if  a  certain  person  was  attended  by  a 
physician,  his  answer  was,  "  Not  as  I  know  of;  I  under- 
stood he  had  a  quack ;  I  would  not  call  him  a  physician," 
on  an  action  brought  for  these  words,  it  was  held  proper 
to  charge  the  jury  that  if  they  "  believed  from  all  the 
circumstances  proved,  from  the  question  put,  from  the 
manner  of  answering,  and  from  the  answers  themselves, 
that  the  defendant  testified  in  good  faith,  or  in  the  belief 
that  his  answers  were  pertinent  or  relevant,  then  the  law 
protected  him ;  but  if  the  defendant  was  actuated  by  mere 
malice,  and  used  the  words  for  the  mere  purpose  of  defam- 
ing the  plaintiff,  then  the  law  withdrew  the  protection  it 
would  otherwise  have  afforded  him.2  Where  the  plaintiff 
brought  an  action  against  one  L.,  and  the  defendant  being 
produced  as  a  witness  at  the  trial,  testified  that  the  plaintiff 
was  a  common  liar,  by  reason  whereof  the  jury  gave  the 
plaintiff  but  small  damages.  After  verdict  for  the  plaintiff, 
in  an  action  for  slander,  it  was  moved  in  arrest  of  judg- 
ment that  the  action  did  not  lie,  for  if  it  did,  every  wit- 
ness might  be  charged  upon  such  a  suggestion,  and  judg- 
ment was  given  for  the  defendant.3 

§  224.  A  party  to  a  proceeding  in  a  court  of  justice  is 
not  liable  to  an  action  for  any  statement  he  may  make  in 
court  in  relation  to  the  matter  there  pending,  provided 
that  such  statement  is  inacle  in  good  faith,  believing  it  to 
be  material,4  and  that  it  is  not  calculated  to  provoke  a 

ness  to  testify  falsely.  (Smith  v.  Lewis,  3  Johns.  157;  Bostwick  v.  Jervis,  2  Day, 
447.)  In  slander  for  charging  the  plaintiff,  in  the  presence  of  "  sundry  persons,"  with 
larceny,  the  defendant  pleaded  that  he  spoke  the  words  in  giving  testimony  as  a  wit- 
ness in  a  certain  cause.  Held,  that  the  defendant  might,  on  the  trial,  prove  what  the 
testimony  which  he  gave  was,  and  that  the  plaintiff,  if  he  meant  to  proceed  for  speak- 
ing the  words  on  some  other  occasion  than  that  named  in  the  plea,  should  have  new 
assigned.     (Nelson  v.  Robe,  6  Blackf.  204.) 

1  Smith  v.  Howard,  28  Iowa,  51 ;  Marsh  v.  Elsworth,  1  Sweeny,  52. 

2  White  v.  Carroll,  42  N.  Y.  161. 

3  Harding  v.  Bullman,  Brownlow,  2;  Hutt.  11. 

4  Allen  v.  Crofoot,  2  Wend.  515.     No  statement  in  the  course  of  "  judicial  proceed, 
ings  "  which  a  party  may  reasonably  deem  necessary  to  his  cause,  will  be  held  libel- 


§  224.]  PAETIES   TO    PROCEEDINGS.  355 

breach  of  the  peace.1  "Where  the  defendant  having  made 
a  criminal  complaint  against  the  plaintiff,  was  questioned 
by  him  with  regard  to  it  during  its  pendency,  and  an- 
swered, in  the  presence  of  the  magistrate,  that  he  believed 
the  charge  true,  held  that  if  the  defendant  believed  in 
good  faith  that  it  was  necessary  for  him  to  answer  the 
plaintiff,  the  answer  was  privileged.2  So  it  has  been  held 
that  if  a  servant  summon  his  master  before  a  court  of  con- 
science for  wages,  and  the  latter,  in  his  necessary  defense, 
utter  words  imputing  a  felony  to  the  former,  no  action 
will  lie.3  "Where  the  prosecutor  in  an  indictment  said  of 
one  offered  as  bail  for  the  defendant,  in  the  indictment, 
"  I  believe  he  Avas  mixed  up  in  the  fraud,"  held  privileged 
if  spoken  in  the  belief  that  it  was  true.4  And  where  the 
plaintiff  was  a  witness  on  the  trial  of  cause  in  which  the 
defendant  was  a  party,  on  her  testifying  to  a  particular 
fact,  the  defendant  immediately,  in  open  court,  exclaimed, 
"  That  is  a  lie,  and  I  can  prove  it,"  and  soon  after  added, 
"and  I  think  I  have  proved  it."  For  these  words  the 
plaintiff  brought  suit,  and  it  was  held  no  action  would 
lie,  the  words  being  uttered  "  in  the  progress  of  a  trial, 
and  in  the  course  of  justice."5  Where  the  plaintiff,  in  an 
action  for  slander,  alleged  that  he  took  an  oath  in  the 


lous,  however  defamatory  it  may  in  its  nature  be  ;  and  it  makes  no  difference  with 
regard  to  such  privileged  statements  whether  they  are  or  not  malicious,  provided  they 
may  be  reasonably  deemed  necessary  to  the  case.  (Lea  v.  White,  4  Sneed  (Tenn.), 
Ill;  Vausse  v.  Lee,  1  Hill,  So.  Car.  19V;  Gosslin v.  Cannon,  ]  Harring.  3;  Marshall  «/. 
Gunter,  6  Rich.  419;  "Warner  v.  Paine,  2  Sandf.  195.)  "Judicial  proceedings"  arc 
not  confined  to  trial  of  civil  actions  or  indictments,  but  includes  every  proceeding 
before  a  competent  court  or  magistrate  in  the  due  course  of  law,  or  the  administra- 
tion of  justice,  which  is  to  result  in  any  determination  or  action  by  such  court  or 
officer.     (Perkins  v.  Mitchell,  31  Barb.  471.) 

1  Reg.  v.  Hutching,  7  Ir.  L.  R.  N.  S.  426. 

2  Allen  v.  Crofoot,  2  Wend.  515 

3  Trottman  v.  Dunn,  4  Camp.  211.  An  action  for  libellous  words  spoken  or  sworn 
in  a  court  of  justice,  in  a  man's  own  defense,  against  a  charge  upon  him  in  that  court, 
will  not  lie.     (Astley  v.  Younge,  2  Burr.  807  ;  2  L'd  Ken.  536.) 

4  Banbury  v.  Duckworth,  21  Law  Times,  302. 

6  Badgley  v.  Hedges,  1  Pennington,  233;  but  see  note  2,  p.  B57,post,  also  §  171. 


356  DEFENSES.  [Ch.  IX. 

King's  Bench,  to  bind  the  defendant  to  good  behavior, 
and  thereupon  the-  defendant  falsely  and  maliciously  said, 
"  there  is  not  a  word  true  in  that  affidavit,  and  I  will 
prove  it  by  forty  witnesses."  The  jury  found  the  words 
false  and  malicious,  and  for  the  plaintiff;  but  judgment 
was  arrested  on  the  ground  that  what  defendant  said 
was  in  his  justification  and  defense  in  a  legal  and  judicial 
way.1 

§  224#.  A  party  to  a  proceeding  in  a  court  of  justice 
may  ordinarily  conduct  the  prosecution  or  defense  in 
person  or  by  counsel  or  attorney,2  where  he  conducts  the 
case  in  person,  whatever  he  may  reasonably  believe  neces- 
sary successfully  to  maintain  his  suit  or  his  defense,  that 
he  may  speak,  in  the  course  of  the  proceeding,  without 
being  subject  to  an  action  for  slander.  A  party  who  is 
not  a  hamster  or  counsellor  conducting  a  cause  on  his 
own  behalf  or  on  behalf  of  another,  has  the  same  privilege 
as  a  counsel  as  to  what  he  may  say.3  The  defendant, 
while  advocating  his  own  cause  before  a  referee,  and 
while  summing  up  the  cause,  called  plaintiff,  among  other 
things,  a  perjured  scoundrel;  in  an  action  for  these  words, 
a  verdict  was  taken  for  the  plaintiff;  on  motion  in  arrest 
of  judgment  the  verdict  was  sustained,  and  judgment 
ordered  for  the  plaintiff.  The  court  said  that  to  arrest  the 
judgment,  it  must  be  held  that  counsel  are  protected  for 
words  spoken  by  them  on  the  trial  of  a  cause,  although 
they  may  have  been  false,  and  uttered  willfully  and  mali- 
ciously, and  were  irrelevant,  and  although  neither  the  evi- 


1  Bolton  v.  Clapham,  W.  Jones,  431 ;  Mar.  20,  cited  by  Holroyd,  J.,  in  Hodgson  v. 
Scarlett,  1  B.  &  A.  244,  and  commented  upon  in  Hastings  v.  Lusk,  22  Wend.  419; 
and  see  Kean  v.  McLaughlin,  2  S.  <fc  R.  470. 

2  In  New  York  State,  every  person  of  full  age  and  sound  mind  may  appear  by 
attorney  *  *  in  every  action  *  *  by  or  against  him  in  any  court,  or  may  at 
bis  election  prosecute  or  defend  such  action  in  person.     (2  R.  S.  276,  §  11.) 

3  Ring  v.  Wheeler,  7  Cow.  725;  Hastings  v.  Lusk,  22  Wend.  410;  Hoar  v.  Wood, 
3  Mete.  193. 


§  225.]  counsel.  357 

dence  nor  the  circumstances  afford  a  suspicion  to  warrant 
the  accusation.  But  the  court  thought  the  rule  could  not 
be  earned  to  that  extravagant  length.1  Where  a  party  to 
a  suit  was  conducting  the  defense  in  person,  and  while 
cross-examining  a  witness,  upon  the  witness  stating  cer- 
tain facts,  exclaimed,  "  It  is  not  so ;  it's  not  so ;  no  such 
thing."  In  an  action  for  slander  by  the  witness  for  these 
words,  the  jury  found  they  were  intended  to  impute  per- 
jury, and  the  court  held  them  to  be  actionable.2 

§  225.  The  right  which  a  party  to  a  proceeding  in  a 
court  of  justice,  conducting  the  proceeding  in  person,  has 
to  speak  all  that  he  may  reasonably  believe  to  be  neces- 
sary for  the  successful  maintenance  of  his  action  or  de- 
fense, is  enjoyed  by  one  conducting  a  proceeding  for 
another,  whether  he  be  conducting  it  as  counsel,  attorney, 
or  otherwise.  A  party  was  alleged  to  have  kept  a  sum 
of  money  which,  by  his  contract,  he  ought  not  to  have 
kept;  counsel,  in  reference  to  this  matter,  used  the  lan- 
guage, "  This  gentleman  has  defrauded  us,"  and  was  inter- 
rupted by  the  court  before  he  had  finished  his  sentence. 
Held,  first,  that  the  words  were  not  actionable ;  secondly, 
that  they  were  not  irrelevant  to  the  matter  before  the 
court.3  "A  counsellor  hath  a  privilege  to  enforce  any- 
thing which  is  informed  him  by  his  client,  and  to  give  it 


1  Ring  v.  Wheeler,  7  Cow.  725 ;  Hastings  v.  Lusk,  22  Wend.  410. 

2  Didway  v.  Powell,  4  Ky.  (Bush)  77 ;  see  §  171,  and  Badgley  v.  Hedges, 
1  Pennington,  233. 

3  Needham  v.  Dowling,  15  Law  Jour.  C.  P.  9.  An  attorney  acting  as  an  advocate 
is  privileged  as  to  statements  made  in  the  trial  of  his  client's  cause,  in  the  same  way 
as  counsel.  An  attorney,  in  defending  his  client  from  a  charge  of  assault  in  turning 
out  the  plaintiff  from  certain  premises  in  which  lie  had  agreed  to  sell  wine  under  an 
agreement  with  J.,  stated  that  J.  had  sufficient  reasons  for  determining  the  agree- 
ment; that  he  had  been  plundered  by  the. plaintiff  to  a  frightful  extent.  Held,  a 
privileged  statement.  (Mackey  v.  Ford,  5  Hurl.  <fc  Nor.  792.)  A  master  is  not  liable 
to  an  action  of  slander  for  words  spoken  while  acting  as  counsel  for  his  slave,  while 
he  is  on  trial  before  a  competent  tribunal,  provided  the  words  are  material  and  per- 
tinent to  the  matter  in  question.  (Shelfer  v.  Hooding,  2  Jones'  Law  (N.  Car.),  175.) 
As  to  the  privilege  of  counsel,  see  Vin.  Abr.,  Act.  for  Words,  B.  a.  2. 


358  DEFENSES.  [Ch.  IX. 

iii  evidence,  it  being  pertinent  to  the  matter  in  question, 
and  not  to  examine  whether  it  be  true  or  false,  for  a  coun- 
sellor is  at  his  peril  to  give  in  evidence  that  which  his 
client  informs  him,  being  pertinent  to  the  matter  in  ques- 
tion ;  but  matter  not  pertinent  to  the  issue,  or  the  matter 
in  question,  he  need  not  deliver,  for  he  is  to  discern  in  his 
discretion,  what  he  is  to  deliver  and  what  not,  and 
although  it  be  false,  he  is  excusable,  it  being  pertinent  to 
the  matter.  But  if  he  give  in  evidence  anything  not  ma- 
terial to  the  issue  which  is  scandalous,  he  ought  to  aver  it 
to  be  true,  for  it  shall  be  considered  as  spoken  mali- 
ciously and  without  cause,  which  is  a  good  ground  for  an 
action."1  "Ka  counsellor  speak  scandalous  words  of  one 
in  defending  his  client's  cause,  an  action  doth  not  lie 
against  him  for  so  doing ;  for  it  is  his  duty  to  speak  for 
his  client,  and  it  shall  be  intended  to  be  spoken  according 
to  his  client's  instructions."2  "Ea  man  should  abuse  this 
privilege,  and  under  pretence  of  pleading  his  cause,  de- 
signedly wander  from  the  point  in  question,  and  mali- 
ciously heap  slander  upon  his  adversary,  I  will  not  say  he 
is  not  responsible  in  an  action  at  law."3  Counsel  is  not 
liable  to  answer  for  defamatory  matter  uttered  by  him  in 
the  trial  of  a  cause,  if  the  matter  is  applicable  and  perti- 
nent to  the  subject  of  inquiry,  but  this  privilege  of 
counsel  must  be  understood  to  have  this  limitation,  that 
he  shall  not  avail  himself  of  his  situation  to  gratify  pri- 
vate malice  by  uttering  slanderous  expressions  against 
party,  witness,  or  third  persons,  which  have  no  relation  to 
the  subject-matter  of  the  inquiry,4  and  "if  a  counsel,  in 

J  Brook  v.  Montague,  Cro.  Jac.  90. 

-  Wood  v.  Gunston,  Sty.  462 ;  per  Glyn,  J.,  in  Hodgson  v.  Scarlett,  1  B.  «fc  A.  232  ; 
L'd  Ellenborough  said  Wood  v.  Gunston  carried  the  privilege  too  far. 

3  Tilghman,  Ch.  J.,  Mciiillan  v.  Birch,  1  Bin.  178.  A  proctor  is  not  privileged  in 
making  defamatory  statements  not  relevant  to  the  matter  in  hand  (Higginson  v.  Fla- 
herty, 4  Ir.  L.  R.  N.  S.  125). 

4  Jennings  v.  Paine,  4  Wis.  358;  Hoar  v.  Wood,  3  Mete.  193 ;  Hodgson  v.  Scarlett, 
1  B.  «fe  A.  232;  Holt  X.  P.  621 ;  Parker  v.  Mitchell,  31  Barb.  469. 


§   226.]  SELF-DEFENSE.  359 

the  course  of  a  cause,  utter  observations  injurious  to  indi- 
viduals and  not  relevant  to  the  matter  in  issue,  it  seems 
to  me  that  he  would  not,  therefore,  be  responsible  to  the 
party  injured  in  a  common  action  for  slander,  but  that  it 
would  be  necessaay  to  sue  him,  in  a  special  action  on  the 
case,  in  which  it  must  be"  alleged  and  proved  that  the 
matter  was  spoken  maliciously,  and  without  reasonable 
and  probable  cause  ;'n  and  semble,  that  although  it  be 
lawful  for  a  counsel  in  the  discharge  of  his  duty  to  utter 
matter  injurious  to  individuals,  yet  the  subsequent  publi- 
cation of  such  slanderous  matter  is  not  justifiable  unless 
it  be  shown  that  it  was  published  for  the  purpose  of 
giving  the  public  information  which  it  was  fit  and  proper 
for  them  t.o  receive,  and  that  it  was  warranted  by  the 
evidence.2 

§  226.  The  right  of  an  accused  person  to  say  all  that 
he  may  honestly  consider  necessaiy  for  his  defense  is  not 
confined  to  proceedings  in  a  court  of  justice;  it  extends  to 
every  occasion  upon  which  one  is  called  upon  to  defend 
himself -from  any  charge  against  him.  Thus,  words  spo- 
ken in  good  faith,  and  within  the  scope  of  his  defense,  by 
a  party  on  trial  before  a  church  meeting,  are  privileged, 
and  do  not  render  him  liable  to  an  action,  although  they 
disparage  private  character.3  Where  the  defendant  ex- 
pressed an  opinion  founded  upon  the  statements  of  others 
that  the  plaintiff  had  maliciously  killed  his  (defendant's) 
horse.  For  expressing  this  opinion  the  defendant  was 
arraigned  before  the  church.  In  self-defense  he  produced 
certificates  of  the  persons  upon  whose  authority  he  had 
spoken.  For  this  the  plaintiff  sued,  but  offering  no  direct 
proof  of  malice,  it  was  held  the  action  was  not  maintain- 
able.4    So  where  R.  &  Co.  received  a  written  order  for  an 

1  Jlolroyd,  J.,  Flint  v.  Pike,  6  D.  <fc  R.  528 ;  4  B.  <fc  C.  473. 
'  Kane  v.  Mulvany,  2  Ir.  R.  C.  L.  402. 
3  York  v.  Pease,  2  Gray  (Mass.),  282. 
*  DuDn  v.  Winters,  2  Humph.  512. 


360  DEFENSES.  [Cll.  IX. 

iron  target,  which  order  purported  to  come  from  the  de- 
fendant ;  R.  &  Co.  sent  the  target  to  the  defendant,  who 
returned  it,  stating  that  he  had  never  ordered  it,  and  re- 
quested to  see  the  written  order  upon  which  R.  &  Co.  had 
acted;  the  order  was  sent  to  the  defendant,  and  he  wrote 
R.  &  Co.  that  he  firmly  believed  it  was  written  by  the 
plaintiff.  It  was  submitted  on  behalf  of  the  defendant 
that  the  communication  was  a  (conditionally)  privileged 
one.  It  was  left  to  the  j  ury  to  say  whether  the  defendant 
had  written  that  the  plaintiff  was  the  author  of  the  order 
sent  to  R.  &  Co.  bona  fide  and  without  malice,  believing  his 
statement  to  be  true ;  the  jury  found  in  the  affirmative,  a 
verdict  was  entered  for  plaintiff  with  ,£5  damages,  with 
leave  to  the  defendant  to  move  to  enter  the  verdict  for 
him,  and  on  motion  the  verdict  was  entered  for  the  de- 
fendant.1 

§  227.  No  action  for  slander  or  libel  can  be  maintained 
against  a  judge,  or  one  exercising  judicial  functions,  for 
anything  he  may  say  or  write  in  his  judicial  capacity  upon 
the  trial  or  upon  the  determination  of  a  cause  or  matter 
pending  before  him ;  if  improper,  it  may  be  a  ground  for 
his  impeachment  or  for  an  application  for  his  removal,  but 
not  for  an  action  of  slander  or  libel.2  Plea  to  a  declara- 
tion for  slander,  that  defendant  was  a  county  court  judge, 
and  the  words  complained  of  were  spoken  by  him  in  his 
capacity  as  such  judge,  while  setting  in  his  court  and  try- 


1  Croft  v.  Stevens,  7  Hurl.  &  N.  570 ;  see  post,  §  240. 

2  Rex  v.  Skinner,  Lofft,  1099.  Neither  party,  witness,  counsel,  jury,  or  judge,  can 
be  made  to  answer  for  words  spoken  in  office ;  although,  if  they  be  opprobrious  and 
irrelevant  to  the  case,  the  court  will  notice  them  as  a  contempt,  and  examine  on  an  in- 
formation, and  punish  accordingly.  (Id. ;  Henderson  v.  Broomhead,  4  Hurl.  &  N. 
564;  Kendillon  v.  Maltby,  2  Moo.  &  Rob.  438;  Moore  v.  Ames,  3  Caines,  170.)  In 
Entick  v.  Carrington,  19  State  Trials,  1062,  Lord  Camden  remarks,  "  No  man  ever 
heard  of  an  action  against  a  conservator  of  the  peace  as  such."  Quoted,  South  v.  The 
State  of  Maryland,  18  How.  U.  S.  Rep.  403,  and  see  Vin.  Abr.  Act.  Case  Deceit,  Q. 
b.  1.  "  If  judges  were  liable  to  be  sued  for  words  spoken  in  their  judicial  capacity, 
it  may  be  said,  in  the  words  of  Lord  Stair,  '  No  man  but  a  beggar  or  a  fool  would  be 
a  judge.'  "     (Lord  Robertson,  Miller  v.  Hope,  2  Shaw  App.  Cas.  134.) 


§  227.]  judges.  361 

iilg  a  cause  in  which  the,  now,  plaintiff  was  defendant. 
Replication :  That  the  said  words  were  spoken  falsely  and 
maliciously,  and  without  any  reasonable,  probable,  or  justi- 
fiable cause,  and  without  any  foundation  whatever,  and 
not  bona  fide  in  the  discharge  of  defendant's  duty  as  judge, 
and  were  wholly  irrelevant  in  reference  to  the  matter  be. 
fore  him.  On  demurrer,  held  that  the  replication  was  bad 
and  the  action  not  maintainable.1  Thus,  no  action  lies 
against  a  coroner  for  words  spoken  maliciously  in  the 
course  of  an  inquest  before  him.2  For  whenever  duties  of 
a  judicial  nature  are  imposed  upon  a  public  officer,  the 
due  execution  of  which  depends  upon  his  own  judgment, 
he  is  exempt  from  all  responsibility  by  action,  for  the  mo- 
tives which  influence  him  and  the  manner  in  which  said 
duties  are  performed.     If  corrupt,  he  may  be  impeached 

1  Scott  v.  Stansfield,  Law  Rep.  Ill,  Ex.  220.  See  Gelen  v.  Hall,  2  H.  &  N.  393; 
Haggart's  Trustee  v.  Hope,  20  Fac.  Dec.  371;  Shaw  App.  Cas.  125;  Aon  v.  McXiel, 
5  Brown  Sup.  573 ;  Fray  v.  Blackburn,  3  B.  &  S.  576 ;  Yates  v.  Lansing,  5  Johns. 
282;  9  id.  395;  Randall  v.  Brigham,  U.  S.  Supreme  Court  Dec,  1868,  7  Wallace, 
523;  Dickerson  v.  Fletcher,  Stuart's  Canada  Rep.  276;  Gugy  v.  Kerr,  id.  292;  and 
296  note. 

2  Thomas  v.  Churton,  6  Law  Times,  N.  S.  320;  2  B.  &  S.  475.  And  semble,  there 
would  be  no  action  although  the  words  were  spoken  without  probable  cause.  (Id.) 
And  per  Cockburn,  Ch.  J. :  "I  should  not  wish  to  lay  down  the  broad  proposition 
that  in  no  case  is  a  judge  liable  for  words  uttered  by  him  as  a  judge."  "  A  public 
officer,  who  is  not  a  mere-volunteer,  but  compelled  to  act  in  a  judicial  capacity,  is 
not  amenable,  either  civilly  or  criminally,  for  a  mistake  in  law  or  error  of  judgment, 
when  his  motives  are  untainted  with  fraud  or  malice."    (Teall  v.  Felton,  1  X.  Y.  547.") 

"Words  spoken  in  discharge  of  official  duty  are  not  actionable.  (Goodenow  r.  Tap- 
pan,  1  Ham.  60.)  Aliter,  if  spoken  under  pretence  of  official  duty,  wantonly  and  with 
malice.  The  question  of  intention  is  to  be  left.with  the  jury.  (lb.)  Tims,  in  an 
action  against  the  defendant,  a  ward-beadle,  for  words  spoken  by  him  before  an  in- 
quest, but  not  in  answer  to  any  inquiries  of  the  jury  nor  in  the  presence  of  the  jury 
only,  held  that  it  was  a  question  for  the  jury  whether  the  words  were  spoken  by  tin: 
defendant  in  the  discharge  of  his  official  duty.  (Wilson  v.  Collins,  5  C.  &  I'.  373  ) 
In  an  action  for  libel  against  one,  a  justice  of  the  peace,  for  defamatory  matter  con- 
tained in  an  official  certificate  by  him  to  the  grand  jury,  held  the  publication  was 
conditionally  privileged.  (Sands  v.  Robinson,  12  S.  &  M.  704.)  A  report  of  the 
grand  jury,  under  any  part  of  §  2992  of  the  Code  of  Iowa,  held  ool  a  privileged  com- 
munication; but  where  it  was  made  in  good  faith,  and  in  tin-  discharge  of  a  supposed 
public  duty,  it  does  not  furnish  ground  to  BUStain  an  action  for  libel. 
Smith,  11  Iowa  (3  With.),  302.)  What  a  petit  jury  says  in  the  jury  room  concerning 
a  matter  before  the  jury  is  absolutely  privileged.  (Dunham  v.  Pow<  r-,  42  Vi  im.  1. 
24 


362  DEFENSES.  [Ch.  IX. 

or  indicted,  but  lie  cannot  be  prosecuted  by  an  individual 
to  obtain  redress  for  the  wrong  which  may  have  been  done.1 
No  public  officer  is  responsible  in  a  civil  suit  for  a  judicial 
determination,  however  erroneous  it  may  be,  and  however 
malicious  the  motive  which  produced  it.2  No  action  will 
lie  for  defamatory  matter  contained  in  a  presentment  of  a 
grand  jury.3  The  plaintiff  (Captain  Jekyll)  having  pre- 
ferred certain  charges  against  Colonel  Stewart,  an  officer  in 
the  same  regiment  with  plaintiff,  Colonel  Stewart  was 
tried  by  a  court  martial,  and  the  president  of  the  court, 
Sir  John  Moore,  delivered  to  the  judge  advocate  a  written 
opinion,  as  the  decision  of  the  court,  and  in  such  opinion, 
after  stating  that  the  court  found  Colonel  Stewart  not 
guilty  of  the  charges  imputed  to  him,  added :  "  The  court 
cannot  pass  without  observation  the  malicious  and  ground- 
less accusations  that  have  been  produced  by  Captain  Je- 
kyll against  an  officer  whose  character,  during  a  long  period 
of  service,  has  been  irreproachable."  For  this  addition  to 
the  decision  Captain  Jekyll  brought  an  action  for  libel 
against  the  president  of  the  court.  The  plaintiff  was  non- 
suited, and  a  new  trial  being  moved  for,  it  was  refused  on 
the  ground  that  the  language  complained  of  formed  part 
of  the  judgment  of  acquittal.4  In  another  case  of  an  action 
brought  for  defamatory  matter  contained  in  a  report  of  a 

1  Rochester  White  Lead  Co.  v.  The  City  of  Rochester,  3  N.  Y.  466.  See  Cooke  on 
Defam.  63;   1  Bish.  Cr.  Law,  §§  914,  916,  3d  ed.;  Scovil  v.  Geddings,  7  Ohio,  211. 

2  Weaver  v.  Devendorf,  3  Denio,  117;  Vail  v.  Owen,  19  Barb.  22;  Brown  v. 
Smith,  24  Id.  419;  and  see  Hill  v.  Sellick,  21  Barb.  20*7;  Harman  v.  Brotherson,  1 
Denio,  537.  But  an  officer  who  violates  a  ministerial  duty,  though  his  office  is  pri- 
marily judicial,  is  liable  therefor.  (Wilson  v.  Mayor  of  New  York,  1  Denio,  595; 
Rochester  White  Lead  Co.  v.  City  of  Rochester,  3  N.  Y.  463.)  Words  spoken  by  the 
mayor  of  a  city  are  privileged.     (Rector  v.  Smith,  11  Iowa,  302.) 

3  Bac.  Abr.  tit.  Libel,  445;  Mo.  627;  Hawk.  PI.  Cr.  c.  73,  §  8 ;  and  see  observa- 
tions in  Johnson  v.  Sutton,  1  T.  R.  493. 

4  Jekyll  v.  Moore,  2  New  R.  341 ;  and  see  Kendillon  v.  Maltby,  1  Car.  &  M.  402 ; 
2  Moo.  &  Rob.  438;  Warden  v.  Bailey,  4  Taunt,  67;  4  M.  &  8.  400.  And  where, 
upon  a  proceeding  on  the  game  laws  in  Scotland,  after  the  defendant  had  confessed, 
and  had  appealed  to  the  leniency  of  the  court  for  a  mitigation  of  the  penalty,  it  was 
asserted  by  the  defendants,  two  of  the  justices,  that  "  he  was  a  thief,  and  had  been 


§  228.]  judges.  363 

military  court  of  inquiry  appointed  to  investigate  charges 
against  the  plaintiff,  it  was  held  that  the  report  was  a 
privileged  publication,  and  could  not  be  given  in  evidence.1 
So  it  was  held  that  the  defendant,  being  governor  in  coun- 
cil of  Fort  St.  George,  was  justified  in  publishing,  accord- 
ing to  the  fact,  that  the  court  of  directors  had  resolved  to 
dismiss  the  plaintiff  from  the  service  for  a  gross  violation 
of  the  trust  reposed  in  him  as  commanding  officer  of  the 
Molucca  Islands,  and  that  he  (the  defendant)  had  been 
ordered  to  erase  his  name  from  the  army  list.2 

§  228.  With  regard  to  the  right  of  a  judicial  officer, 
we  suppose  a  difference  exists  between  a  judge  of  a  court 
of  record  and  a  judge  of  a  court  not  of  record,  or  one  who 
is  not,  indeed,  a  judge  in  the  strict  sense  of  the  term,  but 
who  merely  executes  judicial  functions;  as  respects  the 
first,  his  being  a  judge,  without  more,  constitutes  a  com- 
plete defense  to  an  action  for  anything  said  or  written  by 
him  as  such  judge  (§  227)  ;  but  as  respects  the  second,  the 
privilege  arises  only  in  cases  in  which  he  had  jurisdiction. 
"  If  magistrates  while  occupying  the  bench,  under  pretence 
of  giving  advice,  publicly  hear  slanderous  complaints  over 
which  they  have  no  jurisdiction,  although  their  names  may 
be  in  the  commission  of  the  peace,  a  report  of  what  passed 
before  them  is  as  little  privileged  as  if  they  were  illiterate 
mechanics  in  an  ale-house." 3 

known  to  steal  bee-hives  and  leather ;  "  held,  on  appeal,  that  subordinate  judges  were 
responsible  for  words  spoken,  if  malice  was  clearly  made  out,  the  privilege  being 
confined  only  to  members  of  Parliament  and  judges  of  the  supreme  courts  ;  the  judg- 
ment of  the  court  of  session,  as  far  as  the  interlocutor  of  relevancy  was  concerned, 
was  therefore  affirmed,  but  the  House  not  being  satisfied  that  there  was  evidence  of 
malice,  the  cause  was  remitted  to  another  jury.  (Allardice  v.  Robertson,  1  Dowl.  U. 
S.  495.  See  s.  c.  6  Shaw.  &  Dun.  242;  1  Id.  691 ;  4  Wil.  &  Shaw  App.  Cas.  102  ;  1 
Dowl.  <fc  CI.  495.) 

2  Oliver  v.  Bentinck,  3  Taunt.  456.  See  Dawkins  v.  L'd  Paidet,  Law  Rep.  V,  94 
Q.  B. 

s  Home  v.  Bentinck,  4  Moore,  563;  8  Price,  220,  and  note  LI.  244.  A  communi- 
cation to  a  governor  respecting  an  officer  under  his  command  is  quasi  judicial  and 
privileged.     (Gray  v.  Pentland,  2  S.  &  11.  23;  4  S.  &  R.  420.) 

"Campbell,  Ch.  J.  Lewis  v.  Levy.  1  El.  B.  &  E.  537;  86  Law  Jour.  Rep.  2f2, 
Q.  B;  and  see  as  to  necessity  of  tribunal  having  jurisdiction,  Hosmer  v.  Loveland,  19 


364  DEFEASES.  [Ch.  IX. 

§  220.  Independently  of  any  statute,  certainly  in  the 
State  of  New  York,  and  probably  in  every  other  State, 
"  the  publication  of  the  proceedings  upon  a  judicial  trial 
fairly  reported  and  without  express  malice,  is  not  action- 
able." *  The  like  rule  obtains  in  England,  but  as  both 
there  and  in  New  York  some  limitations  are  imposed 
upon  the  rule,  it  is  necessary,  in  order  to  show  in  what 
these  limitations  consist,  to  examine  somewhat  in  detail 
the  authorities  upon  the  subject.  The  initial  principle 
seems  to  be  that  the  public  good  requires  that  the  pro- 
ceedings in  courts  of  justice  should  be  conducted  openly. 
Accordingly  it  is  in  New  York  provided  by  statute  that 
"the  sittings  of  every  court  within  this  State  shall  be 
public,  and  every  citizen  may  freely  attend  the  same."2 
Although  there  is  no  such  law  in  England,  it  is  the 
custom  there  to  hold  the  courts  with  open  doors.  And  it 
is  said  to  be  a  rule  of  law  that  "  every  one  is  supposed  or 
presumed  to  be  cognizant  of  the  proceedings  in  the  courts 
of  justice,"3  and  hence  "it  is  of  great  consequence  that  the 
public  should  know  what  takes  place  in  the  courts." 4  A 
publication  of  the  proceedings  of  a  court  "  only  extends 

Barb.  Ill;  Howard  v.  Thompson,  21  Wend.  319;  King  v.  Root,  4  Wend.  113; 
O'Donaghue  v.  McGovern,  23  Wend.  26;  Hastings  v.  Lusk,  22  Wend.  410;  Faweett  v. 
Charles,  13  Wend.  473;  Harrison  v.  Bush,  5  Ell.  &  Bl.  344;  Milam  v.  Burnsides,  1 
Brev.  295 ;  Moloney  v.  Bartley,  3  Camp.  210;  McGregor  v.  Thwaites,  3  B.  &  C.  24. 

1  Edsall  v.  Brook3,  17  Abb.  Pra.  R.  227;  26  How.  Pra.  R.  426.  In  New  York  the 
publication  of  judicial  proceedings  is  protected  by  statute,  which  enacts:  No  re- 
porter, editor,  or  proprietor  of  any  newspaper  shall  be  liable  to  aoy  action  or  prose- 
cution, civil  or  criminal,  for  a  fair  and  true  report  in  such  newspaper  of  any  judicial, 
legislative,  or  other  public  official  proceedings  of  any  statement,  speech,  argument,  or 
debate,  in  the  course  of  the  same,  except  upon  actual  proof  of  malice  in  making  such 
report,  which  shall  in  no  case  be  implied  from  the  fact  of  publication.  (Laws  1854, 
ch.  130,  §  1.)  Nothing  in  the  preceding  section  contained  shall  be  so  construed  as  to 
protect  any  such  reporter,  editor,  or  proprietor,  from  an  action  or  indictment  for  any 
libellous  comments  or  remarks  superadded  to  and  interspersed  or  connected  with 
such  report.     (Id.  §  2.) 

2  2  Rev.  Stat.  274,  §  1.  "  Xo  law  insures  the  publicity  of  the  courts  of  justice, 
either  in  England  or  the  United  States."     Lieber  on  Civil  Liberty,  134 ;  ed.  of  1859. 

3  Willard's  Eq.  Juris.  251. 

4  Campbell,  Ch.  J.,  Hearne  v.  Stowell,  12  Adol.  &  Fl.  718;  4  Per.  &  D.  696. 


§  220.]  REPORTS    OF   JUDICIAL   PROCEEDINGS.  3G5 

that  publicity  which  is  so  important  a  feature  of  the 
administration  of  the  law  in  England,  and  thus  enables  to 
be  witnesses  of  it  not  merely  the  few  whom  the  court  can 
hold,  but  the  thousands  who  can  read  the  report," *  and 
"  we  ought  to  make  as  wide  as  possible  the  right  of  the 
public  to  know  what  takes  place  in  a  court  of  justice." 2 
It  is  conceded  that  some  "inconveniences  and  mischief" 
results  or  may  result  from  the  publication  of  the  proceed- 
ings in  courts  of  justice,3  but  "the  balance  of  public 
benefit  from  the  publicity  is  great."4  "Those  who  are 
present  hear  all  (that  takes  place),  relevant  or  irrelevant, 
and  those  who  are  absent  may  *  *  have  all  that  is  said 
reported  to  them  *  *  When  once  you  establish  that  a 
court  is  a  public  court,  a  fair  and  bona  fide  report  of  all 
that  takes  place  there  may  be  published.5  For  being  a 
true  account  of  what  took  place  in  a  court  of  justice, 
which  is  open  to  all  the  world,  the  publication  of  it 
(cannot  be)  unlawful."  6  But,  "  it  must  not  be  taken  for 
granted  that  the  publication  of  every  matter  which  passes 
in  a  court  of  justice,  however  truly  represented,  is  under 
all  circumstances  and  with  whatever  motive  published, 
justifiable;  but  that  doctrine  must  be  taken  with  some 
grains  of  allowance."7  For  as  a  judicial  proceeding  is 
privileged  on  principles  of  public  convenience,  the  privi- 
lege is  limited  in  respect  to  the  subject-matter  of  the  report, 
and  as  to  the  manner  of  the  reporting,8  and  the  "con- 


1  "Wilde,  B.,  Popham  v.  Piekburn,  7  Flurl.  &  X.  891.  On  its  beino:  remarked  to 
Lord  Mansfield,  that  few  persons  attended  the  courts  merely  to  watch  the  proceed- 
ings, he  replied,  "  No  matter,  we  sit  every  day  in  the  newspapers." 

2  Pollock,  Ch.  B.,  Ryalls  v.  Leader,  Law  Rep.,  1  Ex.  298. 

3  Flint  v.  Pike,  4  B.  &  C.  473.     Littledale,  J. 

*  Campbell,  Ch.  J.,  Hearne  v.  Stowell,  12  Adol.  &  El.  718;  4  Per.  &  D.  C9G. 
6  Bramwell,  B.,  Ryalls  v.  Leader,  Law  Rep.,  1  Ex.  298. 
6  Eyre,  Ch.  J.,  Carrie  v.  Walter,  1  B.  &  P.  526. 
'  Stiles  v,  Nokes,  7  East,  493. 
8  1  Stark.  Slan.  263. 


366  DEFENSES.  [Ch.    IX. 

dition  necessarily  annexed  to  the  immunity  is,  that  the 
proceeding  be  fairly,  impartially,  and  correctly  reported, 
and  even  in  that  case  it  will  be  for  the  court  to  consider 
whether  it  was  lawful  to  publish  it.1  "Matters  may 
appear  in  a  court  of  justice  that  may  have  so  immoral  a 
tendency,  or  be  so  injurious  to  the  character  of  an  in- 
dividual that  their  publication  would  not  be  tolerated." 2 
And  therefore  it  is  said,  "  There  is  no  privilege  when  the 
subject-matter  is  hlasj>liemous  or  defamatory  of  an  in- 
dividual." 3  Thus  where  on  the  trial  of  Carlile  for  publish- 
ing Paine's  Age  of  Keason,  the  defendant  read  the  whole 
of  the  book  to  the  jury,  and  afterwards  his  wife  published 
a  full  report  of  the  trial,  containing  an  entire  copy  of  the 
Age  of  Reason  as  read  to  the  jury  ;  for  this  publication  a 
criminal  information  was  granted  against  Mrs.  Carlile,  the 
court  observing  that  although  as  a  general  proposition  it 
was  certainly  lawful  to  publish  the  proceedings  of  courts 
of  justice,  yet  it  must  be  taken  with  this  qualification, 
that  what  is  contained  in  the  publication  must  neither  be 
defamatory  of  an  individual,  tending  to  excite  disaffection, 
nor  calculated  to  offend  the  morals  of  the  people.4 
Although  in  the  course  of  a  trial  it  may  become  necessary 
for  the  purposes  of  justice  to  hear  or  read  matter  of  de- 
famatory or  of  immortal  tendency,  it  is  not  yet  competent 
to  any  persons,  under  the  pretence  of  publishing  that 
trial,  to  re-utter  or  circulate  such  matter.  It  is  observed 
in  the  Sixth  Report  of  the  English  Criminal  Law  Com- 
missioners, that  these  qualifications  destroy  all  the  sup- 
posed privilege.  Our  explanation  is  this :  Truth  is  not 
a  defense  to  a  criminal  prosecution  for  libel,  and  therefore 
where  a  report  of  a  trial  contains  blasphemous,  indecent, 
or  defamatory  matter,  it  is  not  the  less  the  subject  of  a 


1  Littledale,  J.,  Flint  v.  Pike,  4  B.  &  C.  473;  1  Stark.  Slan.  263. 
-  Maule,  J.,  Hoare  v.  Silverlock,  9  C.  B.  20. 

3  1  Stark.  Slan.  263. 

4  Rex  v.  Carlile,  3  B.  &  Aid.  167. 


§    230.]  EEPOKTS    OF   JUDICIAL   PROCEEDINGS.  367 

criminal  prosecution  because  it  is  a  fair  or  true  report  of 
a  judicial  proceeding.  In  a  subsequent  case,1  Maule,  J., 
said :  "  I  think  it  is  impossible  at  this  day  to  say  that  a 
fair  account  of  proceedings  in  a  court  of  justice,  not  being 
ex  parte,  but  on  the  hearing  of  both  sides,  is  not,  generally 
speaking,  a  justifiable  publication.  I  do  not  lay  it  down 
as  a  universal  proposition  /  but  as  a  general  rule,  it  may 
be  assumed  that  the  publication  of  a  fair  account  of  what 
passes  in  a  court  of  justice,  not  ex  parte,  is  justifiable, 
unless  there  is  something  to  take  it  out  of  that  rule." 
"  No  case  has  decided  that  a  report  of  proceedings  in  a 
court  of  justice  implicating  the  reputation  of  a  third 
person  is  under  any  (all)  circumstances  privileged." 2 
"  There  is  no  dictum  to  be  met  with  in  the  books,  that  a 
man,  under  the  pretence  of  publishing  the  proceedings  of 
a  court  of  justice,  may  discolor  and  garble  the  proceedings 
by  his  own  comments  and  constructions,  so  as  to  effect  the 
purpose  of  aspersing  the  character  of  those  concerned."  3 
But  we  ought  to  protect  a  fair  and  bona  fide  statement  of 
the  proceedings  in  a  court  of  justice,4  and  perhaps  the 
result  of  the  authorities  is  that :  a  fair  report  of  a  trial  or 
a  proceeding  in  a  court  of  justice,  conducted  publicly  in 
the  presence  of  the  parties  concerned,  is  conditionally 
privileged.5 

§  230.  When  it  is  said  that  a  fair  report  of  a  trial  in 
a  court  of  justice  is  privileged,  what  is  meant  by  a  fair 

1  Hoare  v.  Silverlock,  9  C.  B.  20. 

2  Ryalls  v.  Leader,  Law  Rep.,  I,  298,  Ex.  and  see  Fittock  v.  O'Neill,  63  Penns. 
253. 

3  Spencer,  J.,  Thomas  v.  Crosswell,  7  Johns.  264,  and    see    Rish  Allah    Bey  v. 
Whitehurst,  18  Law  Times,  N.  S.  615. 

4  Ryalls  v.  Leader,  Law  Rep.,  I,  298,  Ex. 

6  A  fair  account  of  what  takes  place  in  a  court  of  justice  is  privileged.     Ilcarne 
v.  Stowell,  12  Adol.  &  El.  718;  4  Per.  <fe  D.  696;   Turner  v.  Pullman,  6  Law  Times 
Rep.  N.  S.  130;  Rex  v.  Wright,  3  T.  R.  298 ;  Chambers  v.  Payne,  2  C.   M.  <fc  R.  156 
Cincinnati,  &c.  Co.  v.  Timberlake,  10  Oliio,  N.  S.  548;  Flint  v.  Pike,  4  B.  <fc  C.  84 
Saunders  v.  Mills,  6  Ring.  213  ;  3  M.  <fe  P.  520;  Lewis  v.  Levy,  1    El.  B.  &  E.  537 
Andrews  v.  Chapman,  3  C  &  K.  286 ;  Smith  v.  Scott,  2  C  <fe  K.  580. 


368  DEFENSES.  [Cll.  IX. 

report  ?  In  one  case  it  is  said :  "  If  a  party  is  to  "be 
allowed  to  publish  what  passes  in  a  court  of  justice,  he 
must  publish  the  whole  case,  and  not  merely  state  the 
conclusion  which  he  himself  draws  from  the  evidence,"  1 
and  where  in  a  report  of  proceedings  under  a  commission 
of  lunacy,  it  was  stated,,  "The  plaintiff's  testimony, being 
unsupported,  failed  to  have  any  effect  upon  the  jury,  *  * 
Mr.  Jervis  commented  with  cutting  severity  on  the 
testimony  of  Mr.  O,"  the  statement  was  held  not  pri- 
vileged, and  it  was  said  that  the  proceedings  themselves 
ought  to  have  been  set  out,  not  merely  the  result  of  them.2 
Yet  again  it  has  been  said,  that  an  abridged  report  may 
be  a  "  fair  report," 3  and  where  in  an  action  against  the 
publisher  of  a  newspaper  for  a  libel,  on  the  plea  of  not 
guilty,  it  appeared  that  the  libel  purported  to  be  the 
account  of  a  trial  of  a  former  action,  brought  by  the 
present  plaintiff  against  other  parties  for  a  libel,  and  after 


1  Abbott,  Cli.  J.,  Lewis  v.  Walter,  4  B.  &  A.  611. 

2  Roberts  v.  Brown,  10  Bing.  519  ;  4  M.  &  Sc.  407;  and  see  Delegal  v.  Highley, 
3  Bing.  N.  S.  950 ;  where  the  matter  complained  against  professed  to  be  a  report  of 
proceedings  in  a  court  of  justice,  did  not  profess  to  state  facts  as  deposed  to  by  the 
witness,  but  only  as  stated  by  the  counsel  for  the  prosecution — held  not  to  be  a  fair 
report,  and  not  privileged.  (Saunders  v.  Mills,  6  Bing.  213  ;  3  M.  <fc  P.  520.)  And 
where  the  report  stated  that  the  evidence  before  the  magistrate  entirely  negatived 
the  story  of  the  plaintiff,  which  story  was  the  statement  of  the  plaintiff  in  which 
the  imputed  perjury  was  contained, — Held  not  to  be  privileged  ;  and  a  plea  justifying 
this  report  on  the  ground  that  it  was  a  fair  and  correct  report  of  the  proceedings 
which  had  taken  plaee,  was  held  bad  after  verdict.  (Lewis  v.  Levy,  1  Ellis,  B.  it  E. 
53  T.)  The  editor  of  a  newspaper  has  the  right  to  publish  the  fact  that  an  individual 
has  been  arrested,  and  upon  what  charge,  but  he  has  no  right  while  the  charge  is  in 
the  course  of  investigation  before  the  magistrate,  to  assume  that  the  person  accused 
is  guilty,  or  to  hold  him  out  to  the  world  as  such.  (Usher  v.  Severance,  2  App.  9.) 
See  Woodgate  v.  Ridout,  4  Fost.  &  F.  202 ;  Kane  v.  Mulvany,  2  Ir.  Com.  Law  R.  402. 

3  Turner  v.  Sullivan,  6  Law  Times,  K  S.  130.  A  report  in  mbxtance  true,  it 
seems  is  not  privileged.  (Flint  v.  Pike,  4  B.  &  C.  473.)  A  report  "  outrageously 
wrong,"  is  not  privileged.  (Blake  v.  Stevens,  4  Fost.  <fe  F.  232;  11  Law  Times,  X. 
S.  543.)  Where  the  defendant  the  publisher,  of  a  treatise  on  the  "law  of  attorneys," 
purporting  to  give  the  substance  of  the  report  of  proceedings  against  the  plaintiff,  an 
attorney,  stated  that  the  plaintiff  had  been  "struck  off  the  rolls,"  instead  of  stating 
as  the  fact  was  that  plaintiff  had  been  suspended  for  two  years,  held  it  was  a  question 
for  the  jury,  whether  this  was  a  fair  representation  of  the  report.  The  jury  found  it 
was  not  and  the  plaintiff  had  a  verdict.     (Id.  see  ante,  §  213.) 


§  230.]  REPORTS    OF   JUDICIAL   PROCEEDINGS.  3G9 

stating  the  libel  in  the  original  action,  and  the  facts 
proved  by  the  then  defendants,  and  the  summing  up  of 
the  judge,  it  stated  that  the  jury  found  a  verdict  for  the 
plaintiff,  with  £30  damages.  No  evidence  was  given  as 
to  any  such  trial  having  taken  place  in  fact,  or  ^  whether 
the  report  was  fair  or-  not.  It  was  left  to  the  jury  to  say 
whether  the  report,  although  it  contained  some  allegation 
injurious  to  the  plaintiff,  was,  if  taken  altogether,  with 
the  statement  of  the  verdict  being  in  his  favor,  injurious 
to  the  plaintiff  on  the  face  of  it ;  and  the  jury  having 
found  for  the  defendant,  the  court  refused  a  rule  for  a 
new  trial.1  The  report  is  not  privileged  if  it  in  anywise 
discolors  or  garbles  the  proceedings,  or  adds  (unwarranted) 
comments  or  insinuations.3  As  where  the  report  was 
headed  "  Shameful  conduct  of  an  attorney," 3  or  "  How 
lawyer  Bishop  treats  his  clients," 4  or  "  Extorting  money  to 
hush  up  a  complaint," 5  or  "  Blackmailing  by  a  policeman," 6 
or  "Horse-stealing,"7  it  was  held  not  to  be  privileged. 
"Where  a  statement  defamatory  of  the  plaintiff  was  copied 
from  a  previous  publication,  and  published  by  the  defend- 
ant, prefaced  by  the  word  "Fudge,"  the  court  left  it  to 
the  jury  to  say  whether  that  word  was  added  to  vindicate 
the  character  of  the  plaintiff,  or  merely  to  create  an  argu- 
ment in  favor  of  the  defendant,  in  case  proceedings  should 
be  taken  against  him  for  the  publication.8  In  another 
case  the  report  was  headed  "Wilful  and  corrupt  perjury," 
and  it  was  said  by  the  court  "  That  (the  heading)  is 
& 

1  Chalmers  v.  Payne,  2  C.  M.  &  R.  1 56. 

2  Thomas  v.  Crosswell,  7  Johns.  2.04  ;  Stiles  v.  Nokes,  7  East,  403,  s.  c.  sub  nom; 
Carr  v.  Jones,  3  J.  P.  Smith,  491;  Flint  v.  Pike,  4  B.  &  C.  173. 

3  Clement  v.  Lewis,  3   Prod.   &  B.  297,  affirming  Lewis  v.  Clement,  3  B.  <fc  Aid. 
702. 

*  Bishop  v.  Latimer,  4  Law  Times,  N.  S.  775. 
6  Stanley  v.  Webb,  4  Sandf.  21. 

."Edsall  v.  Brooks,  17  Ah!..  I'm.  R.  221  ;  2  Robertson,  29. 
'  Mountncy  v.  Wotton,  2  B.  &  A.d.  673. 
8  Hunt,  v  Algar,  6  0.  &  P.  245. 


370  DEFEASES.  [Cll.  IX. 

merely  stating  the  charge.  It  may  be  a  heading  entirely 
innocent,  simply  indicating  what  is  to  follow,  and  it 
would  be  a  question  for  the  jury  whether  it  is  a  fair  and 
bona  fide  report  of  the  proceedings." 1 

§  231.  "While  it  is  considered  a  principle  of  public 
convenience  to  allow  or  even  to  encourage  reports  of  the 
proceedings  on  a  trial,  reports  of  preliminary  proceedings 
have  been  discouraged  and  regarded  as  having  "  a  tend- 
ency to  pervert  the  public  mind,  and  to  disturb  the 
course  of  justice."2    In  England,  the  magistrate  has  the 


1  Lewis  v.  Levy,  1  Ell.  B.  &  E.  537.  In  Barber  v.  Bennett,  Ms.,  tbe  report  of  a 
proceeding  before  a  magistrate  was  beaded  "  Suspicion  of  stealing  money."  The 
defence  was  a  fair  report,  and  on  demurrer  the  Superior  Court  of  Xew  York  held  that 
the  heading  did  not  prevent  the  report  being  a  privileged  publication. 

2  L'd  Ellenborou2;h,  Kins;  v.  Fisher,  2  Camp.  563 ;  and  see  Charlton  v.  Walton,  6 
Car.  <fe  P.  385  ;  also  Rex  v.  Fleet,  1  B.  &  A.  379,  where  a  criminal  information  wos 
granted  against  the  defendant  for  publishing  the  minutes  of  a  coroner's  inquest.  It 
was  said  to  be  highly  criminal  to  publish  ez-parte  accounts.  Courts  and  judicial  offi- 
cers have  always  claimed  and  exercised  the  right  to  dictate  whether  or  not  the  pro- 
ceedings before  them  should  be  published.  In  the  time  of  Edward  the  Third,  Lucius 
de  Thacstead,  a  notary  public,  was  committed  to  the  Tower  for  merely  attending  in 
court  to  take  a  note  of  the  proceedings  between  Johannes  de  Bourne  and  Ricardus  de 
Potesgrave,  and  in  Flint  v.  Pike,  4  Barn.  &  C.  473,  Littledale,  J.,  said  it  was  for  the 
court  to  consider  whether  it  was  lawful  to  publish  a  report  of  the  proceedings.  Lord 
Eldon  interdicted  the  publication  of  the  proceedings  on  the  application  of  the  poet 
Shelley  for  the  custody  of  his  children.  (See  Memoir  of  Shelley,  by  T.  L.  Peacock, 
and  Fraser's  Magazine,  No.  342,  361.)  So  recently  as  1867,  a  justice  of  the  Superior 
Court  of  the  City  of  New  York  prohibited  the  publication  of  proceedings  had  before 
him,  and  his  course  was  approved  by  the  other  justices  of  that  court.  A  coroner  may 
prohibit  the  publication  of  proceedings  had  before  him  (Garrett  v.  Ferrand,  6  B.  & 
C.  611),  and  so  may  a  committing  magistrate.  (Cox  v.  Coleridge,  1  B.  &  G.  37.  See 
Borthwick  on  Libel,  119, 121,  note;  Holt  on  Libel,  ch.  ix.)  The  cases  are  more  nu- 
merous where  the  publication  of  the  proceedings  has  been  prohibited  pending  the 
proceedings.  A  disregard  of  such  a  prohibition  is  a  contempt.  In  one  case,  Lord 
Eldon  remarked  that  when  he  first  came  into  Westminster  Hall,  the  law  was  well 
understood  that  it  would  be  a  contempt  to  publish  the  proceedings  of  the  court 
before  they  were  finished.  (Knight  v.  Knight,  1  Jac.  &  Walk.  167.)  In  Rex  v. 
Clement,  4  Barn.  &  Aid.  218,  Lord  Tenterden  ordered  that  there  should  be  no  publi- 
cation of  the  proceedings  until  the  several  indictments  against  the  defendant  had 
been  tried ;  and  he  fined  a  newspaper  proprietor  £500  for  disobedience  to  this  order, 
in  publishing  an  account  of  the  first  trial  before  the  second  had  begun.  The  courts 
upheld  the  action  of  Lord  Tenterden.  Lord  Campbell,  in  his  Lives  of  the  Chief 
Justices,  vol.  Ill,  p.  208,  gives  it  as  his  opinion  that  this  transaction  tarnished  the 
fame  of  Lord  Tenterden,  and  that  the  order  forbidding  the  publication  was  "impru- 


§  231.]        EEPOETS    OF   JUDICIAL   PROCEEDINGS.  371 

power  of  conducting  preliminary  examinations  privately, 
and  a  report  of  such  a  proceeding  would  not  be  privileged. 


dently"  made.  See  Eex  v.  Gilhara,  1  M.  &  M.  165 ;  Brook  v.  Evans,  6  Jur.  N.  S.  1025 ; 
Filkin  v.  Herbert,  32  Law  Jour.  294,  Ch.  In  New  York,  by  statute  (2  Rev.  Stat.  278, 
§  10),  "Publishing  a  false  or  grossly  inaccurate  report  of  the  proceedings  of  a  court 
of  record  is  a  criminal  contempt."  Any  publication  prejudicing  the  merits  of  a  cause 
before  it  is  heard  is  a  contempt.  (2  Atk.  4*79.)  The  validity  of  plaintiff's  marriage 
coming  in  question  in  a  suit,  her  father,  pending  the  suit,  advertised  in  a  newspaper, 
offering  a  reward  to  any  one  who  would  produce  legal  proof  of  the  marriage — held  a 
contempt.  (Pool  v.  Sacheverel,  1  P.  Wms.  676.)  The  printers  of  a  newspaper  were 
committed  for  publishing ;  that  certain  parties  to  a  suit  had  turned  "  affidavit  men." 
(Roach  v.  Gaiwan,  2  Atk.  469  ;  2  Dick.  794.)  In  that  case  reference  was  made  to  the 
case  of  a  printer  of  a  newspaper  punished  for  publishing  of  a  certain  cause,  that  it 
was  "a  hue  and  cry  after  charitable  uses,"  and  to  the  case  of  Capt.  Perry,  punished 
for  printing  and  publishing  his  brief  before  the  cause  came  on.  A  party  was  com- 
mitted to  prison  for  publishing  an  advertisement  reflecting  on  an  answer  in  the  cause. 
(See  Cann  v.  Cann,  2  Dick.  795;  2  Ves.  520;  Ex-parte  Crow,  2  Turn.  &  Ven.  Pra. 
231,232.)  Where  an  injunction  order  appointing  a  receiver  had  been  granted,  the 
party  obtaining  the  order  caused  printed  copies  of  it  to  be  dispersed  among  the  ten- 
ants, to  prevent  them  paying  rents  except  to  the  receiver;  Lord  Hardwick  refused  to 
adjudge  it  a  contempt,  but  expressed  his  disapproval  of  the  proceeding  (Baker  v. 
Hart,  2  Atk.  488),  as  thus:  "Nothing  is  more  incumbent  upon  courts  of  justice-than 
to  preserve  their  proceedings  from  being  misrepresented;  nor  is  there  anything  of 
more  pernicious  consequence  than  to  prejudice  the  minds  of  the  public  against  per- 
sons concerned  as  parties  in  causes  before  the  cause  is  finally  heard.  It  has  always  been 
my  opinion,  as  well  as  the  opinion  of  those  who  have  sat  here  before  me,  that  such  a 
proceeding  ought  to  be  discountenanced."  Repeated  by  Sir  W.  Page  Wood,  V.  C, 
Tichborne  v.  Mostyn,  Law  Rep.  VII,  Eq.  55,  n. ;  and  see  Daw  v.  Eley,  Law  Rep.  VII, 
Eq.  49,  in  which  case  the  solicitor  in  the  cause  had  published  a  letter  in  a  newspaper 
relating  to  the  pending  suit ;  on  a  motion  to  punish  said  solicitor  and  editor  for  con- 
tempt, the  motion  was  granted  as  to  the  solicitor  and  denied  as  to  the  editor.  (See 
Coleman  v.  West  Hartlepool  R'wy  Co.,  8  Weekly  Rep.  734;  Ex-parte  Jones,  13  Ves. 
237 ;  Littler  v.  Thompson,  2  Beav.  1 29  ;  Felkin  v.  L'd  Herbert,  33  Law  Jour.  Ch.  294 ; 
Lechmere  Charlton's  Case,  2  My.  &  Cr.  316;  Ex-parte  Smith,  21  Law  Times,  N.  S. 
294.)  Publishing  disparaging  comments  upon  the  court,  or  its  officers,  or  its  pro- 
ceedings, is  a  contempt.  Thus  the  New  York  Common  Council,  being  enjoined  by  a 
preliminary  injunction  from  certain  official  action,  passed  resolutions  declaring  the 
injunction  illegal,  proclaiming  a  resolution  to  disregard  it,  and  imputing  dishonesty 
to  the  judge  who  granted  it;  held,  the  resolution  was  a  contempt,  (The  People  v. 
Compton,  1  Duer,  512;  affirmed,  The  People  v.  Sturtevant,  9  N.  Y.  263 ;  and  see 
Morrison  v.  Moat,  4  Edw.  25.)  And  where  an  officer  of  a  corporation  had  a  verdict 
against  him  in  an  action  for  malicious  prosecution,  which  verdict  was  sustained  by 
the  court,  the  corporation  voted  him  a  sum  of  money,  and  passed  a  resolution  to  the 
effect  that  in  instituting  the  prosecution  in  question  he  had  been  actuated  by  motives 
of  public  justice;  this  was  held  a  lvhVcf  ion  upon  the  court,  and  a  contempt.  Rex  v. 
Watson,  2  Term  R.  199.)  Pending  the  trial  of  one  Nlxen,  in  the  Oyer  and  Ter- 
miner. New  York  CHy,  April,  1864,  an  article  appeared  in  the  New  York  Tribune, 
headed,  "  A  judicial  outrage,"  and  which  was  supposed  to  reflect  upon  the  conduct  of 


372  DEFENSES,  [Cll.  IX. 

But  if  a  preliminary  proceeding  is  carried  onforibus  aper- 
its,  it  would  be  privileged.     We  are  not  prepared  to  lay 


the  judge  (G.  G.  Barnard)  presiding  on  the  trial  of  Xixon.  The  article  was  supposed 
to  have  been  written  by  Horace  Greeley,  and  an  order  issued  for  him  to  show  cause 
before  Judge  Barnard  why  "he  should  not  be  attached  for  contempt.  Instead  of 
showing  cause,  he  moved  for  a  writ  of  prohibition,  which  being  denied,  the  following 
order  was  made : 

"  In  the  Mutter  of  Horace  Greeley  upon  an  Order  to  show  cause  why  he  should  not  answer 
for  a  Contempt  of  Court. — It  is  ordered  by  the  court,  that  the  said  Horace  Greeley,  now  here  appearing 
by  I.  T.  Willams,  Esq.,  his  counsel,  answer  (and  the  answer  under  oath  is  waived)  the  following  interro- 
gations, and  have  until  Monday  next,  being  the  25th  day  of  April  inst.,at  11  o'clock  A.  M.,  to  file  answers 
thereto,  and  be  then  heard  in  this  court  in  defense  of  the  accusation  that  he  published  a  grossly  inaccu- 
rate report  of  the  proceedings  of  this  court  in  the  Daily  Tribune  of  April  14, 1864,  in  the  language  con- 
tained in  and  recited  in  interrogatory  the  first. 

"Interrogatory  the  First. — Did  you  write  in  manuscript  the  following  matter,  which  appeared  in 
page  4,  in  column  2  thereof,  in  the  New  York  Daily  Tribune  of  Thursday,  April  14,1864,  to  wit? 

("  A  judicial  outrage."    Here  follows  the  article,  portions  of  which  contain  the  alleged  contempt.) 

'*  Interrogatory  Second. — If  not,  did  you  write  in  manuscript  any  part  thereof? 

"  Interrogatory  Third. — If  not,  did  you  see  the  same  in  manuscript  or  in  proof  before  it  was  pub- 
lished? 

"  Interrogatory  Fourth. — If  not,  were  you  or  not  the  responsible  editor  of  the  Tribune  on  the  14th 
day  of  April,  1  Mil? 

"Interrogatory  Fifth. — If  you  did  not  write  or  see  before  publication  the  said  matter,  do  you 
know  who  is  the  author,  or  writer,  or  composer  thereof,  or  did  you  not  know  that  it  was  to  be  pub- 
lished ? 

"Interrogatory  Sixth. — If  you  know  the  said  author  or  writer,  please  name  him. 

'"Then  follows  a  statement  or  report  of  the  transactions  in  court,  which  were  reported  and  commented 
on  in  the  Tribune,  and  a  disclaimer  from  the  court  of  any  complaint  as  to  the  editorial  comments,  but 
only  as  to  what  purports  to  be  a  report  of  the  proceedings  in  court." 

To  these  interrogatories  Mr.  Greeley  made  and  filed  the  following  statement: 

"  Horace  Greeley,  in  the  above-entitled  proceedings  referred  to,  protesting  against  the  jurisdiction  of 
this  court  over  his  person,  and  over  the  proceedings  now  being  taken,  and  insisting  that  they  are  irregu- 
lar and  without  warrant  of  law,  and  further  insisting  that  he  ought  not  to  be  asked,  and  cannot  legally 
be  compelled,  to  answer  questions  upon  a  charge  which  is  in  its  nature  criminal,  and  for  which  he  may 
be  exposed  to  indictment,  both  as  a  misdemeanor  for  a  contempt  as  well  as  for  a  libel,  and  further  insist- 
ing that  the  said  article,  in  the  order  to  show  cause  in  these  proceedings  referred  to,  is  not  a  report  of 
the  proceedings  of  a  court,  but,  on  the  other  hand,  is  simply  an  editorial  criticism,  based  upon  a  report 
of  such  proceedings  contained  In  a  newspaper  called  the  Evening  Express,  published  two  days  before 
said  editorial  article  was  published,  to  wit,  on  the  12th  day  of  April  instant. 

"  For  answer  to  the  interrogatories  filed  and  served  on  him,  says  that  he  is  now,  and  ever  since  its 
foundation  has  been,  the  principal  editor  of  the  newspaper  called  the  Tribune,  and  is  one  of  its  proprie- 
tor?, by  being  a  stockholder  of  the  corporation  that  publishes  the  same.  That  as  such  editor  and  propri- 
etor he  is  subject  to  all  the  responsibilities  that  justly  pertain  to  that  relation.  Believing  that  this 
avowal  is  a  substantial  answer  to  all  the  interrogatories  propounded  to  him,  he  most  respectfully  de- 
clines to  answer  any  questions  that  may  expose  any  of  his  associates  in  the  editorship  and  publication 
of  said  newspaper,  to  the  discipline  of  this  tribunal,  preferring  to  abide  the  consequences,  be  they  what 
they  may." 

The  court  being  satisfied  that  no  disrespect  was  intended,  discharged  Mr. 
Greeley. 

As  to  contempts  by  publications  reflecting  on  courts,  &c,  see  R>  Van  Hook,  8 
City  Hall  Recorder,  64  ;  Re  Spooner,  5  Id.  109  ;  Re  Strong,  Id.  9  ;  Be  Yates, 4  Johns. 
317  ;  6  Johns.  337;  Re  Eliz.  Mayer,  2  Barnard.  43  ;  Ex-parte  Jones,  13  Yes.  Jr.  237  ; 
Re  Crawford,  18  Law  Jour.  225,  Q.  B.;  13  Jur.  955:  Ex-parte  Turner,  3  Mont.  D.  & 
G.  523 ;  Re  Van  Sandau,  1  De  Gex,  55 ;    Birch  v.  Walsh,  10  Ir.  Law  R.  93 ;    Rex  v. 


§  231.]  REPORTS    OF   JUDICIAL   PROCEEDINGS.  373 

clown  the  law  that  the  publication  of  preliminary  inquiries 
before  magistrates  is  invariably  lawful,  but  Ave  are  not 
prepared  to  lay  clown  the  law  that  the  publication  of  such 
inquiries  is  invariably  unlawful.  There  is  no  distinction 
between  one  court  and  another  as  respects  the  right  of 
publishing  reports  of  their  proceedings,  provided  the  pro- 
ceedings be  had  publicly,  and  not  ex  parte}  And  where 
a  preliminary  examination  is  publicly  conducted,  in  the 
presence  of  the  accused,  there  seems  to  be  no  reason  why 
the  same  rule  should  not  aj:>ply  to  such  a  proceeding,  as  to  a 
trial.  No  privilege  can  be  claimed  for  a  report  of  an  ex  parte 
proceeding,2  but  probably  it  is  now  settled  that  a  fair  report 


Lee,  5  Esp.  123;  Rex  v.  Hart,  1  Camp.  359;  1  Hawk.  PI.  Cr.,  ch.  73 ;  Re  Crawford, 
13  Q.  B.  613  ;  Starkie  on  Slander,  by  Folkard,  ch.  xxxvi;  Moulton  v.  Clapham,  Sir 
W.  Jones,  431 ;  March  on  Slander,  20 ;  Hollingsworth  v.  Duane,  J.  B.  Wallace,  77 ; 
Bayard  v.  Passmore,  3  Yeates,  438;  Respublica  v.  Oswald,  1  Dallas,  319;  Richmond 
v.  Dayton,  10  Johns.  393 ;  Folger  v.  Hoogland,  5  Johns.  235 ;  Re  Bronson,  12  Id.  460  ; 
The  People  v.  Freer,  1  Cai.  485 ;  The  People  v.  Few,  2  Johns.  290 ;  2  Stark.  Slander, 
ch.  xiii;  Solicitor's  Journal,  1864,  page  142  ;  An  Inquiry  into  the  Doctrine  lately 
Propagated  concerning  Attachments  for  Contempts,  <fec,  by  an  English  Constitution 
Crown  Lawyer,  London,  1769.  (Historical  Soc.  Lib.  N.  Y.)  See  a  pamphlet  entitled 
Bights  of  Corporations  and  Reporters,  published  at  Columbia,  South  Carolina,  A.  D. 
1857,  containing  the  report  of  the  case  of  Robert  W.  Gibbs  v.  Edward  I.  Arthur  and 
John  Burdell.  The  City  Council  held,  in  1855,  a  public  meeting.  The  plaintiff,  the 
editor  of  one  of  the  city  papers,  being  present,  was  asked  by  the  mayor  whether  he 
had  come  to  take  notes  of  the  proceedings.  The  plaintiff  answering  in  the  affirmative, 
the  ma}'or  ordered  him  to  leave,  which  on  the  plaintiff's  refusing  to  do,  he  was,  on  the 
mayor's  orders,  ejected  by  a  police  officer.  The  plaintiff  sued  the  mayor  and  the 
officer,  and  the  defense  interposed  was  in  the  first  instance  that  the  mayor  acted  on  a 
resolution  of  the  city  council  forbidding  the  presence  of  reporters  at  their  meetings, 
and  subsequently  the  defense  was  set  up  that  the  city  council  had  authorized  the 
publication  of  their  proceedings  in  a  paper  other  than  that  with  which  the  plaintiff 
was  connected.  Both  these  defenses  failed,  and  the  plaintiff  recovered  damages  for 
being  ejected. 

1  Lewis  v.  Levy,  36  Law  Jour.  R.  282,  Q.  B. ;  1  El.  B.  <fe  E.  537. 

2  Publishing  the  contents  of  an  ex-parte  affidavit,  made  to  obtain  the  plaintiff's 
arrest,  is  not  privileged  as  a  report  of  judicial  proceedings.  (Cincinnati,  <fec.  Co.  v. 
Timberlake,  10  Ohio,  N.  S.  548.)  Report  of  ex-parte  preliminary  proceedings  not 
privileged.  (Duncan  v.  Thwaites,  3  B.  &  C.  556;  5  D.  &  R.  447;  Rex  v.  Lee,  5  Esp 
123;  Currie  v.  Walter,  1  B.  &  P.  523;  Huff  v.  Bennett,  4  Sandf.  127;  Stanley  v.  Webb, 
A  Sandf.  21 ;  8  N.  Y.  209;  Matthews  v.  Beach,  5  Sandf.  256;  Hoare  v.  Silverlock,  9 
C.  B.  20.)  It  was  held  by  Martin,  J.,  in  Pinero  v.  Goodlake  (15  Law  Times,  X  S. 
676),  that  a  fair  report  of  proceedings  before  a  magistrate  was  privileged. 


374  DEFENSES.  [Ch.  IX. 

of  a  proceeding  before  a  magistrate,  not  being  ex  parte,  is 
privileged.  It  being  shown  that  the  proceeding  is  judicial, 
in  a  public  court,  and  not  ex  parte,  a  fair  report  of  it  is  pri- 
vileged. Thus,  in  an  action  for  libel,  it  appeared  that  the 
defamatory  matter  was  published  in  a  fair  report  of  pro- 
ceedings before  two  judges  at  chambers,  on  applications 
under  the  Bankrupt  Act,  5  &  6  Victoria,  chapter  122,  and 
it  was  held  that  the  proceeding  was  judicial,  and  the  report 
privileged.1  And  in  respect  to  proceedings  in  jail  under 
the  same  statute,  and  before  a  registrar  in  bankruptcy,  it 
was  held  that  the  jail  was  a  public  court,  and  the  proceed- 
ings judicial,  and  the  report  being  a  fair  one,  was  privi- 
leged, although  it  affected  a  person  not  a  party  to  the 
proceedings.2     A  committee  of  the  House  of  Lords  is  a 

1  Simpson  v.  Robinson,  12  Adol.  &  El.  N.  S.  511 ;  Smith  v.  Scott,  2  Car.  <fe  K. 
580. 

*  Ryals  v.  Leader,  Law  Rep.  1  Ex.  296.  Reports  of  proceedings  in  the  bankruptcy 
court  said  to  be  privileged.  (Behrens  v.  Allen,  3  Fost.  &  F.  135;  and  by  Cockburn, 
Ch.  J.,  in  Wason  v.  "Walter,  Law  Rep.  IV,  Q.  B.  93.)  "Our  law  of  libel  has,  in  many 
respects,  only  gradually  developed  itself  into  anything  like  a  satisfactory  and  settled 
form.  The  full  liberty  of  public  writers  to  comment  on  the  conduct  and  motives  of 
public  men  has  only  in  very  recent  times  been  recognized.  Comments  on  govern- 
ment, on  ministers  and  officers  of  state,  on  members  of  both  houses  of  Parliament,  on 
judges  and  other  public  functionaries,  are  now  made  every  day,  which  half  a  century 
ago  would  have  been  the  subject  of  actions  or  ex  officio  informations,  and  would  have 
brought  down  fine  and  imprisonment  on  publishers  and  authors.  Yet  who  can  doubt 
that  the  public  are  gainers  by  the  change,  and  that,  though  injustice  may  often  be 
done,  and  though  public  men  may  often  have  to  smart  under  the  keen  sense  of  wrong 
inflicted  by  hostile  criticism,  the  nation  profits  by  public  opinion  being  thus  freely 
brought  to  bear  on  the  discharge  of  public  duties?  Again,  the  recognition  of  the 
right  to  publish  the  proceedings  of  courts  of  justice  has  been  of  modern  growth.  Till 
a  comparatively  recent  time  the  sanction  of  the  judges  was  thought  necessary  even 
for  the  publication  of  the  decisions  of  the  courts  upon  points  of  law.  Even  in  quite 
recent  days,  judges,  in  holding  publication  of  the  proceedings  of  courts  of  justice  law- 
ful, have  thought  it  necessary  to  distinguish  what  are  called  ex-parte  proceedings  as  a 
probable  exception  from  the  operation  of  the  rule.  Yet  ex-parte  proceedings  before  a 
magistrate,  and  even  before  this  court,  as,  for  instance,  on  applications  for  criminal 
informations  are  published  every  day,  but  such  a  thing  as  an  action  or  indictment 
founded  on  a  report  of  such  an  ex-parte  proceeding  is  unheard  of,  and,  if  any  such 
action  or  indictment  should  be  brought,  it  would  probably  be  held  that  the  true 
criterion  of  the  privilege  is,  not  whether  the  report  was  or  was  not  ex-parte,  but 
whether  it  was  a  fair  and  honest  report  of  what  had  taken  place,  published  simply 
with  a  view  to  the  information  of  the  public,  and  innocent  of  all  intention  to  do 
injury  to  the  reputation  of  the  party  affected." 


§  232.]  REPORTS   OF   JUDICIAL   PROCEEDINGS.  375 

public  court,  and  a  report  of  their  proceedings  is  privi- 
leged.1 A  report  of  the  proceedings  before  a  grand  jury 
have  been  held  not  to  be  privileged.2  The  register  of 
protests  of  bills  and  notes  in  Scotland,  established  by 
statute,  was  held  a  public  document,  to  which  every  one 
had  a  right  of  access,  and  the  publication  of  which  was 
privileged.3  Where  one  who  had  been  convicted  of  mur- 
der and  sentenced  to  death,  while  on  the  scaffold,  and  just 
before  his  execution,  made  a  speech,  in  which  he  reflected 
upon  one  of  the  counsel  who  defended  him  on  his  trial,  it 
was  held  that  a  report  of  this  speech  published  in  New 
York  by  the  defendant  in  a  newspaper  of  which  he  was 
editor,  was  not  privileged  either  at  common  law  or  by  the 
statute.4 

§  232.  Where  the  judicial  proceeding  is  public,  and 
not  ex  parte,  the  report  of  what  takes  place  is  not  the  less 
privileged  because  published  pending  the  proceeding,  and 
before  it  has  terminated;  thus  where  a  declaration  for 
libel  set  out,  in  three  separate  counts,  reports  of  three 
separate  days'  proceedings,  respectively,  (on  two  adjourn- 
ments,) before   a  magistrate ;  the  report  of  the  first  day 


1  Kane  v.  Mulvany,  2  Ir.  Com.  Law,  402. 

2  McCabe  v.  Cauldwell,  18  Abb.  Pra.  R.  37T.  The  true  ground  for  this  decision 
was  that  a  proceeding  before  a  grand  jury  is  a  secret  ex  parte  proceeding,  although 
it  seems  to  rest  on  the  assumption  that  a  grand  jury  is  not  a  "judicial  body."  As  to 
report  of  a  coroner's  inquest,  see  East  v.  Chapman,  M.  &  M.  46.  The  publication  of 
a  report  of  commissioners  appointed  to  inquire  into  corporations,  held  not  to  be 
privileged.  (Charlton  v.  Walton,  6  C  &  P.  385.)  A  statement  in  a  printed  sheet 
issued  by  the  Police  Commissioners,  to  members  of  the  force,  to  the  effect  that 
plaintiff  had  been  dismissed  from  his  situation  under  said  Commissioners,  as  Inspector 
of  Hackney  carriages  for  fraud  in  his  accounts,  held  not  privileged.  (Jackson  v. 
Mayne,  19  Law  Times,  N.  S.  399.)  A  publication  of  a  report  of  an  Inspector  of 
Charities,  under  the  charitable  trust  act,  held  not  to  be  privileged.  (Cox  v.  Feeny, 
4  Fost.  &  F.  13.) 

2  Fleming  v.  Newton,  1  CI.  <fc  Fin.  N".  S.  363. 

4  Sanford  v.  Bennett,  24  N.  Y.  20.  See  Statute  referred  to  in  note  to  §  229  ante. 
If  a  highwayman  shall  at  the  gallows  arraign  the  justice  of  the  law,  and  of  those 
who  condemned  him,  he  who  publishes  (the  highwayman's  language)  shall  not  go 
unpunished.     (4  Read.  Stat.  Law,  154;  Dig.  LL.  32.) 


376  DEFENSES.  [Cll.    IX. 

stating  that  the  plaintiff  was  charged  with  perjury,  and 
an  adjournment,  but  reserving  the  report;  the  report  of 
the  second  day  also  stating  an  adjournment  in  language 
intimating  that  there  would  be  a  report  of  the  proceedings 
of  the  day  to  which  the  adjournment  was ;  and  the  third 
stating  the  discharge  of  the  party  charged ;  and  the  jury 
found  generally  that  the  reports  were  fair  and  correct. 
Held,  that  the  reports  of  the  first  two  meetings  did  not 
lose  the  privilege  by  reason  of  the  proceedings  there 
reported  not  being  final.1  And  in  the  same  case,  if  we 
correctly  interpret  the  report,  it  was  held  that  the  pri- 
vilege of  publishing  a  report  of  preliminary  proceedings 
is  not  lost  by  the  fact  that  the  proceeding  terminates  in 
the  discharge  by  the  magistrate  of  the  party  accused. 

§  233.  By  becoming  a  member  of  a  church  the  in- 
dividual tacitly  consents  to  submit  to  the  church  discipline.2 
The  proceedings  of  the  church  to  enforce  its  discipline  are 
quasi  judicial,  and  therefore  those  who  complain,  or  give 
testimony,  or  act,  or  vote,  or  pronounce  the  result,  orally 
or  in  writing,  acting  in  good  faith  and  within  the  scope  of 
the  authority  conferred  by  this  jurisdiction,  and  not  falsely 
or  colorably  making  such  proceedings  a  pretence  for  cover- 
ing an  intended  scandal,  are  protected  by  law.3  One 
Miss  Mary  Jerom  was  the  daughter  of  Quaker  parents, 
and  she  was  educated  in  that  persuasion.  She  having 
acted  in  disobedience  to  the  rules  of  the  congregation,  by 
frequenting  places  of  public  diversion  and  otherwise,  she 
was  warned  to  discontinue  such  practices,  where  upon  she 


1  Lewis  v.  Levy,  1  El.  B.  &  E.  537. 

;  Remington  v.  Congdon,  2  Pick.  310;  Jarvis  v.  Hathaway,  3  Johns.  180;  Holt 
on  Libel,  236;  Shelton  v.  Nance,  7  B.  Monr.  128;  Whittaker  v.  Carter,  4  Ired.  461. 

3  Farnsworth  v.  Storrs,  5  Cush.  412  ;  Fairchild  v.  Adams,  11  Cush.  549 ;  Smith  v. 
Youmans,  3  Hill  (So.  Car.)  85.  If  words,  actionable  in  themselves,  be  spoken 
between  members  of  the  same  church,  in  the  course  of  their  religious  discipline,  and 
without  malice,  no  action  will  lie ;  and  the  jury  are  to  decide  whether  there  be 
malice  or  not.     (Jarvis  v.  Hathaway,  3  Johns.  180.) 


§  233.]  CHURCH   DISCIPLINE.  377 

absented  herself  from  the  meetings,  and  declared  that  she 
no  longer  regarded  herself  as  one  of  their  body.  After 
various  fruitless  attempts  to  reclaim  her,  the  society 
proceeded  in  the  usual  way  to  a  sentence  of  expulsion, 
which  was  reduced  to  writing,  approved  at  a  monthly 
meeting,  and  read  by  the  defendant  Hart,  as  clerk  of  the 
meeting,  at  a  subsequent  meeting  for  worship.  This 
sentence  of  expulsion  recited  that  the  prosecutrix  was 
born  of  Quaker  parents,  and  educated  in  that  society,  but 
that,  not  regarding  the  truth  they  professed,  she  had 
imbibed  erroneous  notions ;  divers  part  of  her  conduct 
was  inconsistent  with  a  life  of  self-denial,  and  the  futile 
attempts  made  to  reclaim  her;  then  declared  her  not  a 
member  of  the  society,  until  by  repentance  she  acknow- 
ledged scripture  doctrine.  Miss  Jerom,  hearing  of  this 
sentence,  sent  her  servant  to  the  defendant  for  a  copy, 
which  he  sent  her  under  cover.  After  failing  in  an 
application  for  a  criminal  information,  Miss  Jerom  procured 
the  defendant  to  be  indicted,  tried,  and  convicted,  for  libel. 
On  motion  for  a  new  trial,  the  court  held  that,  no  express 
malice  being  shown,  the  jury  ought  to  have  been  directed 
to  acquit  the  defendant,  and  ordered  a  new  trial.1  A  vote 
passed  by  a  board  of  trustees  of  a  church,  censuring  C,  a 
former  treasurer  of  such  church,  for  obstinately  retaining 
the  church  funds  received  by  him  as  such  treasurer  in  his 
hands,  and  refusing  to  pay  them  over,  is  privileged ;  but 
if  published  maliciously,  will  support  an  action.2  A 
communication  of  a  church  member,  complaining  of  the 
conduct  of  his  clergy,  addressed  to  their  common  superior, 

1  Rex  v.  Hart,  1  W.  Blacks.  386 ;  2  Burns'  Eccles.  Law,  779. 

5  Holt  v.  Parson,  23  Texas,  9.  In  an  action  for  libel,  the  defendant  pleaded  that 
the  words  were  used  without  malice,  in  a  complaint  to  a  churcli,  of  which  both 
parties  were  members,  for  the  purpose  of  bringing  the  plaintiff  to  trial  before  a 
committee  thereof.  The  plaintiff  replied  that  the  charge  was  made  willfully  an  I 
maliciously:  to  which  replication  the  defendant  demurred.  Held,  that  the  replication 
was  sufficient,  although  it  contained  no  averment  of  want  of  probable  cause.  (])i  a 
v.  Holter,  0  Ohio,  N.  S.  228.) 
25 


378  DEFENSES.  [Cll.  IX. 

is  privileged.1  And  if  a  selectman,  acting  in  his  official 
capacity,  accuse  a  member  of  the  church  of  voting  tw ice 
on  the  same  ballot,  it  is  privileged.2 

§  234.  The  privilege  extended  to  proceedings  to  en- 
force church  discipline,  applies  only  to  cases  where  both 
parties  are  members  of  the  church.  A  complaint,  to  a 
church,  against  one  of  its  members  by  one  who  is  not  a 
member,  is  not  privileged ;  neither  would  such  a  complaint 
by  a  member  against  one  who  is  not  a  member,  be  pri- 
vileged ; 3  but  if  the  party  accused  voluntarily  submits 
himself  to  the  discipline  of  the  church,  all  the  proceedings 
are  privileged.4  Where  a  vote  of  excommunication  from  a 
church  has  been  j>assed,  and  the  offender  thereby  declared 
to  be  no  longer  a  member,  a  subsequent  reading  of  the 
sentence  by  the  pastor,  in  the  presence  of  the  congregation, 
is  privileged.5 

§  235.  The  publication  of  defamatory  matter  is  not 
privileged,  because  made  at  a  public  meeting.6  But  at 
meetings  of  public  bodies,  having  certain  duties  to  perform, 
what  is  said  in  the  exercise  of  such  duties,  pertinent  to 
the  matter  in  hand,  and  within  the  jurisdiction  of  the 
meeting,  is  privileged.  Where  at  a  meeting  of  a  board  of 
public  officers,  the  commissioners  of  the  New  York 
Central  Park,  and  in  the  course  of  a  debate  as  to  employ- 
ing the  plaintiff  to  do  certain  work  for  said  commissioners, 
the  defendant,  a  member  of  the  board,  objected  to  the 
employment  of  plaintiff  on  the  ground  that  he  had  pub- 
lished an  obscene  libel ;  held,  that  the  charge,  being 
pertinent  to  the  subject  under  discussion,  was  privileged, 

1  O'Donoghue  v.  McGovern,  23  Wend.  26. 
9  Bradley  v.  Heath,  12  Pick.  163. 

3  Coombs  v.  Rose,  8  Blackf.  155. 

4  Remington  v.  Congdon,  2  Pick  310. 
6  Farnsworth  v.  Storrs,  5  Cush.  412. 

6  Lewis  v.  Few,  5  Johns.  1 ;  Anthon,  75  ;  Davison  v.  Duncan,  7   El.  <fe  Bl.  229  ;  3 
Campbell's  Ch.  Justices,  64,  note. 


§  235.]  PUBLIC  MEETING.  379 

and  to  entitle  the  plaintiff  to  maintain  an  action  in  respect 
of  it,  he  nmst  establish*  that  the  charge  was  made  without 
reasonable  or  probable  cause.1  The  defendant  at  a  parish 
meeting  for  the  nomination  of  overseers,  imputed  to  the 
plaintiff  who  was  put  up  for  re-election,  that  whilst  hold- 
ing office  previously,  he  had  mis-appropriated  the  parish 
moneys,  it  was  held  to  be  privileged  if  made  bona  fide? 
A  shareholder  of  a  railway  company,  having  summoned  a 
meeting  of  the  shareholders,  to  which  meeting  he  invited 
the  reporters  to  the  press,  to  attend,  and  at  which  meeting 
he  made  defamatory  comments  on  the  plaintiff,  one  of  the 
directors,  in  his  connection  with  the  company,  held  that 
although  they  might  have  been  privileged,  if  made  at  a 
meeting  composed  only  of  shareholders,  they  were  not 
privileged  at  a  meeting,  at  which  other  than  shareholders 
were  present.3  The  plaintiff  being  one  of  the  over- 
seers, and  the  defendant  assistant  overseer  of  a  township, 
a  rate  was  made  on  a  railway  company,  against  which 
it  appealed.  Shortly  before  the  hearing  of  the  appeal, 
a  meeting  of  the  overseers  was  called  to  consider  the 
matter,  when  it  was  resolved  to  abandon  the  rate,  and  a 
vestry  meeting  was  called  to  choose  fresh  overseers  and 
consider  the  propriety  of  removing  the  defendant  from  his 

1  Viclev.  Gray,  10  Abb.  Pr.  R.  1 ;  18  How.  Pr.  R.  550.  At  a  meeting  of  the 
proprietors  of  a  fisher}7,  a  charge  made  by  one  proprietor  against  another,  of  having 
violated  the  law  regulating  the  fishery,  was  held  to  be  privileged.  (Bennett  v.  Burr, 
8  Law  Times  Rep.  N.  S.  857.)  The  assessors  of  a  town  having  been  sued,  applied  to 
the  town  for  reimbursement  of  their  expenses,  incurred  in  defending  on  the  ground 
that  they  were  sued  in  their  official  capacity.  This  was  opposed  because  the  suit 
was  brought  against  them  for  making  false  answers,  under  oath  to  interrogatories 
proposed  to  them  in  another  suit.  The  statement  of  a  voter  and  tax-paver  that  they 
had  perjured  themselves  therein,  made  at  a  town  meeting  held  to  consider  their 
application,  is  privileged  if  made  in  good  faith  and  without  actual  malice.  (Smith 
v.  Biggins,  16  Gray,  (Mass.)  251.)  Where  a  rate  payer  was  unable  to  attend  a  parish 
meeting,  assembled  to  investigate  the  accounts  of  a  parish  constable,he  wrote  a 
letter  to  the  meeting,  containing  defamatory  matter  respecting  such  constable,  such 
letter  was  held  prima  facie  privileged.  (Spencer  v.  Amerton,  1  Moo.  &  Rob.  470 
and  see  g  239,  post.) 

4  George  v.  Goddard,  2  Fost.  &  F.  689. 

3  Parsons  v.  Surgey,  4  Fost.  &  F.  'J  17. 


880  DEFENSES.  [Ch.  IX. 

office.  At  that  meeting  the  plaintiff  imputed  to  the 
defendant  neglect  of  duty  in  collecting  the  rates,  and 
having  made  a  rate  which  the  overseers  were  obliged  to 
give  up,  to  which  the  defendant  retorted  by  saying  that 
the  plaintiff  had  sold  the  rate-payers  to  the  railway 
company,  and  had  received  a  bribe  from  them  for  that 
purpose.  After  the  meeting  a  person  remarked  to  the 
defendant  that  he  ou^ht  not  to  have  said  what  he  did 
without  some  foundation  for  it ;  to  which  the  defendant 
replied  that  he  believed  there  was  reason  for  thinking 
that  the  plaintiff  had  had  communications  with  the  officers 
of  the  railway  company.  An  action  having  been  brought 
for  the  words  used  by  the  defendant  at  the  meeting,  queiy, 
whether  the  words  were  spoken  under  circumstances  which 
rendered  them  a  privileged  communication?  but  held, 
assuming  they  were,  there  was  evidence  of  malice  proper 
to  be  left  to  the  jury.1  But  it  was  held  not  to  be  a  justi- 
fication Vf  a  charge  of  official  misconduct  against  a  town 
officer  that  the  charge  was  made  in  open  town  meeting, 
by  the  defendant,  an  inhabitant  of  the  town,  while 
animadverting  on  the  conduct  of  the  plaintiff  as  such 
officer,  relative  to  a  subject  then  before  the  meeting,  in 
which  the  defendant  was  interested  as  a  qualified  voter.2 
And  where  a  resolution  introduced  into  a  county  medical 
society,  for  the  expulsion  of  a  member,  upon  the  ground 
that  he  had  procured  his  admission  by  false  pretences,  and 
without  the  legal  qualifications,  was  held  not  to  be  pri- 
vileged, because  the  society  had  no  power  to  expel  a 
member  for  such  a  cause.8  Where  the  defendant,  one  of 
the  selectman  of  the  town,  while  he  was  acting  as  a  public 
officer,  and  at  an  election  in  an  open  town  meeting,  charged 
the  plaintiff  with  having  put  two  votes  into  the  ballot-box, 
it  was  held  that  the  charge  was  privileged,  principally  on 

1  Senior  v.  Medland,  4  Hurl.  &  N.  843 ;  4  Jur.  N.  S.  1039. 

3  Dodds  v.  Henry,  9  Mass.  262. 

3  Fawcett  v.  Charles,  13  Wend.  473. 


§  236.]       REPORTS  OF  PUBLIC  MEETINGS.  381 

the  ground  that  the  defendant  had  a  duty  to  perform, 
and  that  the  charge  was  made  in  the  performance  of  his 
duty.1  It  was  held 2  that  defamatory  matter  concerning  a 
Roman  Catholic  Priest  was  not  privileged  by  the  fact  of 
its  having  been  spoken  at  a  meeting  held  to  petition  par- 
liament against  making  a  grant  towards  the  support  of  a 
Roman  Catholic  College. 

§  236.  Nor  is  the  publication  of  defamatory  matter 
privileged  because  made  in  a  true  report  of  the  proceed- 
ings of  a  public  meeting,  for  "there  is  no  analogy  between 
the  proceedings  at  a  public  political  meeting,  and  the  pro- 
ceedings in  a  court  of  justice ; " 3  and  therefore  it  has 
been  held  that  a  publication  of  defamatory  matter  made 
in  a  report  of  proceedings  at  a  public  meeting  called  to 
petition  parliament  against  making  a  grant  in  support  of 
a  Eoman  Catholic  college,  was  not  privileged.4  And 
where  the  defamatory  matter  was  contained  in  a  report  of 
the  proceedings  of  a  vestry  meeting,  it  was  held  not  to  be 
privileged;  thus,  an  English  statute  18  and  19  Vict.,  ch. 
120,  provided  for  the  appointment  of  a  medical  officer  in 
each  parish,  who  was  to  report  from  time  to  time  to  the 
vestry,  and  such  reports  were  to  be  published  annually, 
in  the  month  of  June.  A  report  was  made  to  the  vestry 
in  February,  and  in  the  same  month  published  by  the 
defendant  in  a  newspaper  of  which  he  was  the  editor  and 
proprietor,  in  and  as  part  of  the  proceedings  of  the  vestry. 
This  report  contained  a  charge  of  misconduct  on  the  part 
of  the  plaintiff;  he  sued  the  defendant  for  libel,  and  it 
held  that  the  publication,  being  a  true  report  of  what 
took  place  at  the  vestry,  did  not  render  it  privileged."' 

lley  v.  Heath,  12  Pick.  163. 

2  Hearne  v.  Stowell,  12  Adol.  <fc  El.  719. 

3  Lewis  r.  Few,  ■">  Johns,  1. 

4  Hearne  v.  Stowell,  12  Adol.  <fc  El.  710;  4  Per.  &  D.  GOfi;  Wilson  v.  Reed,  2  Fost. 
&  F.  140;   Pierce  v.  Ellis,  (1  Jr.  L.  P.,  N.  S.  :,:, ;  Davidson  v.  Duncan,  7  El.  &  B.  231. 

s  ropham  v.  Pickburn,  7  Hurl,  it  X.  891.    Query,  would  the  publication  havi 


882  DEFENSES.  [Ch.  IX. 

But  in  another  case,  a  report  of  the  condition  of  town 
schools,  made  and  published  as  required  by  law,  by  the 
superintending  school  committee,  and  charging  the  pru- 
dential committee  of  the  district  with  unlawfully  employ- 
ing a  teacher,  and  putting  her  in  charge  of  a  school,  taking 
possession  of  the  school-house,  and  forcibly  excluding  the 
general  committee  and  the  teachers  employed  by  them, 
but  not  imputing  corrupt  motives,  held  privileged.1  And 
so  it  was  held  that  the  publication,  by  a  member  of  the 
Massachusetts  Medical  Society,  of  a  true  account  of  the 
proceedings  of  that  society  in  the  expulsion  of  another 
member  for  a  cause  within  its  jurisdiction,  and  of  the 
result  of  certain  suits  subsequently  brought  by  him 
against  the  society  and  its  members,  on  account  of  such 
expulsion,  is  privileged ;  although  it  speaks  of  the  expelled 
member  as  "  the  offender,"  and  remarks  that  "  the  society 
has  vindicated  its  action  in  this  case,  and  its  right  to  act 
in  all  parallel  cases."  2 

§  237.  Tlie  right  to  seek  redress  is  not  limited  to  seek- 
ing it  in  a  court  of  justice.8     Every  one  who  is  aggrieved, 

privileged  had  it  been  made  by  the  defendant  after  the  report  had  been  published  by 
the  vestry,  as  required  by  the  statute  ?     (Id.) 

1  Shattuck  v.  Allen,  4  Gray,  540;  and  see  Haight  v.  Cornell,  15  Conn.  74.  "Where 
the  defendant  made  a  speech  at  a  public  meeting,  and  afterwards  handed  a  copy  of  it 
to  the  reporters,  who  published  it  in  a  newspaper,  held  that  such  publication  was  not 
privileged     (Pierce  v.  Ellis,  6  Ir.  C,  L.  55.) 

-  Barrow  v.  Bell,  1  Gray,  301. 

3  Padmore  v.  Lawrence,  11  Adol.  &  El.  380;  3  Per.  &  D.  209;  Kine  v.  Sewell,  3 
M.  &  W.  297;  Robinson  v.  May,  2  J.  P.  Smith,  3.  Semble,  that  words  spoken  to  a 
police  officer  engaged  in  an  endeavor  to  detect  a  crime,  are  privileged.  (Smith  v. 
Kerr,  1  Barb.  155.  See,  however,  Dancaster  v.  Hewson,  2  M.  <fc  R.  176.)  Plaintiff 
assaulted  the  defendant  on  the  highway  ;  defendant,  meeting  a  constable, 
requested  him  to  take  charge  of  the  plaintiff,  and  the  constable  refusing  to  arrest 
the  plaintiff  unless  the  defendant  would  charge  him  with  felony,  the  defendant  did 
so;  held,  on  demurrer  to  the  defendant's  plea  setting  up  these  circumstances,  that 
they  did  not  render  the  charge  of  felony  a  privileged  publication.  (Smith  v.  Hodg- 
kins,  Cro.  Car.  276;  and  see  Allen  v.  Crofoot,  2  Wend.  515;  Lathrop  v.  Hyde,  25 
"Wend.  448.)  In  Johnson  v.  Evans,  3  Esp.  32,  plaintiff,  a  female,  had  been  in  the 
employ  of  defendant,  and  on  discharging  her,  some  difference  arose,  the  defendant 
charging  the  plaintiff  with  endeavoring  to  cheat  him  respecting  her  wages,  and  said, 


§  237.]        EEDEESS    OTHER-WISE   THAX   JUDICIALLY.  383 

or  who  has  reasonable  arid  probable  cause  to  believe  him- 
self aggrieved,  may,  in  good  faith,  seek  redress  frorn 
any  body,  officer  or  individual,  having  jurisdiction, 
power  or  authority  to  redress  the  wrong  or  supposed  wrong 
(§  238«).  Whatever  is  spoken  or  written  in  such  a 
pursuit  for  redress  is  privileged.  For  defamatory  matter 
published  in  seeking  relief  other  than  from  a  court  of 
justice,  the  action  is  said  to  be  analagous  to  an  action  for 
malicious  prosecution,1  with  a  distinction  or  supposed  dis- 
tinction which  may  be  illustrated  as  thus :  that  redress  for 
malicious  prosecution  cannot  be  had  in  an  action  in  form 
for  slander  or  libel  (§  220),  while  for  defamatory  matter 
published  in  seeking  redress  from  any  source  other  than  a 
court  of  justice,  redress  may  be  had  in  the  form  of  an 
action  for  slander  or  libel.  To  an  action  in  form  of  slan- 
der or  libel,  it  is  a  defense  merely  to  show  the  publication 
was  made  to  a  court  of  justice,  but  it  is  not  a  defense 
merely  to  show  that  the  publication  was  made  upon  an 
application  for  redress  other  than  to  a  court  of  justice, 


"  She  is  a  thief,  and  tried  to  rob  rae  of  part  of  her  wages."  Defendant  sent  for  a 
constable  to  give  plaintiff  in  charge,  and  repeated  these  words  to  the  constable, 
but  did  not  give  plaintiff  in  charge;  the  only  publication  proved  was  to  the  consta- 
ble, and  plaintiff  was  nonsuited.  In  an  action  of  slander  against  the  defendant,  for 
charging  the  plaintiff  with  theft,  where  it  appeared  that  the  words  spoken  were  onlv 
expressions  of  suspicion,  founded  upon  facts  detailed  by  him  at  the  time,  made  pru- 
dently and  in  confidence  to  discreet  persons,  in  good  faith,  with  a  view  to  their  aid- 
ing him  to  detect  the  offender  and  recover  the  property  stolen,  it  was  held  that  thev 
were  not  slanderous,  but  justifiable  and  proper.  (Grimes  v.  Coyle,  6  B.  Jlour.  301.) 
The  defendant  having  some  cause  to  suspect  the  plaintiff  of  dishonesty,  went  to  plain- 
tiff's relations  and  made  to  them  a  charge  of  theft  against  tin-  plaintiff;  and  it  appear- 
ing that  the  object  in  making  the  communication  was  rather  t<i  compromise  the  felony 
than  to  promote  inquiry,  or  to  enable  the  relations  to  redeem  the  plaintiff's  character, 
the  publication  was  held  not  privileged.  (Hooper  v.  Truscott,  2  Bing.  \.  R.  457.) 
Tie-  defendant,  having  I  by  theft,  w<  ;it  t*.  the  plaintiff's  bouse  with  a  police 

officer,  and,  in  answer  to  questions  as  to  the  object  of  his  visit,  accused  plaintiff  of  the 
theft,  and  stated  the  grounds  of  his  belief.  In  an  action  of  slander,  held,  that  this  was 
a  privileged  communication,  if  ma  re  found  bv 

the  jury.  Nor  is  the  privilege  defeated  by  the  fact  that  the  charges  were  made  in 
the  presence  of  third  parties  and  in  an  intemperate  manner.  (Brown  v.  Hathaway, 
13  Allen  (Mass.),  3need,  Law  Rep.  A",  Q.  !;.  cos.) 

1  Howard  v.  Thompson,  21  Wend.  319;   Cook  v.  Hill,  3  Sandf.  349. 


384  DEFENSES.  [Cll.  IX. 

unless  it  be  also  shown  that  the  forum  addressed  had 
jurisdiction  and  the  application  was  honestly  made — i.  e. 
in  good  faith  and  with  reasonable  and  probable  cau^e. 
To  support  malicious  prosecution,  besides  showing  that 
the  prosecution  has  terminated,  it  must  be  shown  that  the 
publication  was  without  probable  cause  and  with  malice, 
i.  e.  bad  motive ;  bad  motive  alone  will  not  support  the 
action,  if  there  was  probable  cause ;  while  to  support  an 
action  for  a  publication  in  seeking  redress  extra-judicially, 
it  is  sufficient  to  show  either  want  of  jurisdiction  in  the 
forum  addressed,  or  want  of  probable  cause  or  bad  motive ; 
for  the  right  to  appeal  to  a  court  of  justice  is  general  and 
without  reference  to  the  motive  wherever  probable  cause 
exists ;  but  the  right  to  seek  redress,  extra-judicially,  is 
limited  to  seeking  it  with  probable  cause  and  with  a  good 
motive  from  a  body,  officer  or  individual  having  jurisdic- 
tion or  power  to  afford  relief.  In  a  case  where  the  defend- 
ant had  written  defamatory  matter  to  the  superior  of  the 
plaintiff,  an  ecclesiastic,  it  was  alleged  in  the  conrplaint 
that  the  publication  was  made  maliciously;  the  plea  was 
in  effect  merely  that  the  publication  was  made  in  seeking 
redress  from  an  officer  having  jurisdiction  to  grant  relief. 
On  demurrer,  the  plea  was  overruled,  and  it  was  held  that 
to  constitute  a  defense,  the  plea  should  have  gone  on  and 
alleged  reasonable  and  probable  cause  for  making  the 
complaint,  and  that  it  was  made  with  good  motives.1  It 
has  been  held  that  within  the  foregoing  privilege,  are: 
petitions  to  the  sovereign,2  or  to  parliament,3  or  to  the 
legislature,4  or  to  the  lieutenant-governor  of  a  province 
(Canada),5  or  to  the  governor  of  a  state.6  a  memorial  pre- 

1  In  O'Donaghue  v.  McGovern,  23  Wend.  26,  and  in  Perkins  v.  Mitchell,  31  Barb. 
461,  a  distinction  is  made  between  a  complaint  made  to  a  court  of  justice  and  a  com- 
plaint made  elsewhere. 

2  Hare  v.  Mellor,  3  Lev.  133.  s  1  Lev.  240,  and  ante,  note  4,  p.  346. 
4  Reid  v.  Delorme,  2  Brevard,  76. 

6  Stai.ton  v.  Andrews,  5  Up.  Can.  Q.  B.  Rep.  211,  O.  S. 

6  Gray  v.  Pentland,  2  S.  &  R.  23 ;  4  Id.  420 ;  and  see  Rogers  v.  Spaulding,  1  Up. 
Can.  Q.  B.  258;   Corbett  v.  Jackson,  id.  128. 


§  237.]        EEDKES3    OTHERWISE   THAN   JUDICIALLY.  385 

sentecl  to  a  board  of  excise,1  a  petition  to  a  council  of 
appointment  praying  the  removal  of  the  plaintiff  from 
office ; 2  a  memorial  to  the  post-office  department  charging 
fraud  on  the  plaintiff,  a  successful  bidder  for  post-office 
patronage;3  a  letter  to  the  Secretary  of  War,  with  the 
intent  to  prevail  on  him  to  exert  his  authority  to  compel 
the  plaintiff  (an  officer  in  the  army)  to  pay  a  debt  due 
from  him  to  defendant ; 4  a  letter  to  the  superior  officer  of 
the  plaintiff,  having  power  to  remove  him,  and  charging 
him  with  fraud  in  his  office ; 6  a  letter  written  to  a  bishop 
informing  him  that  a  report  was  current  in  a  parish  in  his 
diocese,  that  the  plaintiff,  the  incumbent  of  a  district  in 
that  parish,  had  assaulted  a  schoolmaster ; 6  charges  pre- 
ferred to  a  lodge  of  Odd  Fellows  by  one  member  of  that 
lodge  against  another,  and  for  an  offense  which  the  lodge 
under  its  rules  had  the  right  to  investigate.7     The  trustees 

1  Vanderzee  v.  McGregor,  12  Wend.  545. 

2  Thome  v.  Blanchard,  5  Johns.  508.  Where  the  complaint  is  to  a  person  compe- 
tent to  redress  the  grievance,  no  action  lies  against  the  publisher,  whether  his  state- 
ment be  true  or  false,  or  his  motives  innocent  or  malicious.  {Id.)  See  Harrison  v. 
Bush,  5  El.  &  Bl.  344. 

3  Cook  v.  Hill,  3  Sandf.  341.  A  letter  of  complaint  written  to  the  Postmaster-Gen- 
eral, bona  fide,  of  even  imaginary  grievances,  would  be  privileged  ;  and  the  defendant, 
under  the  general  issue,  may  show  that  it  was  written  under  such  circumstances  as 
would  make  it  a  protected  communication.     (Woodward  v.  Lander,  G  C.  &  P.  548.) 

4  Fairman  v.  Ives,  5  B.  &  Aid.  643 ;  1  D.  <t  R.  252. 

5  Howard  v.  Thompson,  21  Wend.  319;  Blake  v.  Pilfold,  1  M.  <fc  Rob.  198.  A 
petition  of  parties  interested,  to  the  proper  authorities,  against  the  appointment  of 
one  on  the  ground  of  his  bad  character,  as  disqualifying  him  fur  the  appointment,  is 
not  actionable  as  a  libel.  (Harris  v.  Harrington,  2  Tyler,  129.)  A  letter  from  an 
inhabitant  of  a  school  district,  to  the  school  committee,  complaining  of  a  school- 
teacher, is  conditionally  privileged.  (Bodwcll  v.  Osgood,  3  Pick.  379;  and  see  Main- 
land v.  Bramwell,  2  Fost.  &  F.  623.) 

6  James  v.  Boston,  2  C  <fe  K.  4.  If  written  merely  with  the  honest  intention  of 
calling  the  attention  of  the  bishop  to  a  rumor  in  the  parish,  which  was  bringing  scan- 
dal on  tin;  church,  and  not  from  any  malicious  motive  ;  and  it  is  not  material  that  the 
writer  of  the  letter  did  not  live  in  the  district  to  the  incumbent  of  which  the  letter 
refers.     (Id.)     And  see  O'Donaghue  v.  McGovern,  23  Wend.  26. 

"  Streety  v.  Wood,  15  Barb.  105.  Where  A.  accused  B.  of  theft  before  certain 
members  of  a  lodge  of  Odd  Fellows,  of  which  both  were  members,  and  in  an  action  for 
slander  by  A.,  B.  attempted  to  justify  what  lie  said,  by  showing  that  it  was  the  duty 
of  Odd  Fellows  to  keep  their  lodge  pure,  the  justification  was  held  to  he  insufficient. 
(Holmes  v.  Johnson,    11   Ired.  55).     Defendant,  who  was  a  sergeant    in  a  volunteer 


386  DEFENSES.  [Ch.  IX. 

of  the  College  of  Pharmacy  in  New  York  appointed  a  com- 
mittee to  inquire  and  report  upon  the  capacity  of  the  plain- 
tiff as  drug  ins]^ector  of  the  port  of  New  York,  with  a  view 
upon  the  facts  reported  to  petition  for  the  removal  of  the 
plaintiff  from  his  office.  The  committee  made  a  written 
report  to  the  board  of  trustees,  who  forwarded  it  to  the 
Secretary  of  the  Treasury, — held  that  the  report  was  privi- 
leged.1 The  defendant,  the  deputy-governor  of  Greenwich 
Hospital,  wrote  and  printed  a  large  volume,  containing  an 
account  of  the  abuses  of  the  hospital,  and  reflecting  with 
much  asperity  upon  many  of  its  officers;  he  distributed 
copies  of  this  book  to  governors  of  the  hospital  only  ;  an 
application  for  a  criminal  information  against  the  defend- 
ant was  denied,  with  the  observation  that  the  distribution 
had  been  only  to  persons  competent  to  redress  the  griev- 
ances complained  of.2  The  defendant  was  clerk  to  a  board 
of  guardians,  and  plaintiff  the  medical  officer  under  said 
board.  C.  was  the  relieving  officer  under  said  board.  A 
pauper  was  to  be  removed  to  another  district,  but  previ- 
ous to  his  removal  he  was  to  be  examined  by  plaintiff. 
The  defendant,  under  the  direction  of  the  board,  called 
twice  upon  plaintiff,  each  time  requesting  him  to  make 
the  examination  of  the  pauper ;  but  plaintiff  neglected  to 


corps,  of  which  plaintiff  also  was  a  member,  represented  to  the  committee  by  whom 
the  general  business  of  the  corps  was  conducted,  that  plaintiff  was  an  unfit  person  to 
to  be  permitted  to  continue  a  member  of  the  corps ;  that  he  was  the  executioner  of 
the  French  king,  cfec.  Lord  Ellenborough  held  the  communication  privileged.  (Bar- 
baud  v.  Hookham,  5  Esp.  109.) 

1  Van  Wyck  v.  Aspinwall,  17  N.  V.  190,  affirming  S.  C.  sub.  nam.  Van  Wyck  v. 
Guthrie,  4  Duer,  268;  and  see  Haight  v.  Cornell,  15  Conn.  74. 

3  Rex.  v.  Baillie,  21  State  Trials,  1;  Andr.  229.  In  another  case,  the  plaintiff  had 
been  a  general  commanding  a  corps  of  irregular  troops  during  the  war  in  the  Crimea. 
Complaint  having  been  made  of  the  insubordination  of  the  troops,  the  corps  com- 
manded by  the  plaintiff  was  placed  under  the  superior  command  of  V.  The  plaintiff 
then  resigned  his  command,  and  V.  directed  S.  to  inquire  and  report  on  the  state  of 
the  corps,  and  referred  S.  to  the  defendant  for  information.  Defendant,  in  a  conver- 
sation with  S.,  made  a  defamatory  statement  in  respect  to  the  plaintiff  on  his  giving 
up  the  command  of  his  corps :  held  that  it  was  properly  left  to  the  jury  to  say  whether 
the  communication  was  relevant  to  the  inquiry.    (Beatson  v.  Skene,  5  Hurl.  &  N.  83S.) 


§  238.]        EEDRESS    OTHERWISE    THAN    JUDICIALLY.  387 

make  such  examination.  The  defendant  afterwards  went 
to  C.  and  complained  of  this  neglect  on  plaintiff's  part,  and 
stated  that  plaintiff  was  "  not  sober,"  or,  as  appeared  on 
the  trial,  "as  drunk  as  a  sow."  Whereupon  C.  served 
plaintiff  with  a  formal  order  to  make  the  examination, — 
held  that  the  statement  by  defendant  to  C.  was  condition- 
ally privileged.1  The  defendant,  a  subscriber  to  a  charity, 
wrote  a  letter  to  the  committee  of  manas;ement  of  the 
society  concerning  the  plaintiff,  their  secretary,  —  held 
privileged,  if  made  in  an  honest  belief  in  the  truth  of  the 
statements.2  And  where  the  defendant  was  a  life  governor 
and  medical  officer  of  a  public  school,  to  which  school 
plaintiff  supplied  butchers'  meat,  the  defendant  stated  to 
the  steward  of  the  school  that  defendant  sold  meat  by  the 
yard,  and  had  been  hooted  out  of  the  market,  innuendo 
that  he  sold  bad  meat.  It  appearing  that  it  was  the 
steward's  duty  to  examine  the  meat  supplied  to  the 
school,  held  that  if  the  defendant's  statement  was  with- 
out malice  it  was  privileged.3  The  defendant,  the  com- 
manding officer  of  a  regiment,  wrote  letters  to  his  imme- 
diate  superior,  containing  charges  against  the  plaintiff, 
the  colonel  in  command ;  defendant  also  had  a  conversa- 
tion with  a  member  of  parliament  as  to  a  question  to  be 
put  in  the  House  of  Commons  relative  to  the  dismissal  of 
the  plaintiff.  It  was  hejd  that  both  the  letters  and  the 
conversation  were  privileged,  if  made  without  malice.4 

§  238.  The  privilege  referred  to  in  the  last  preceding 
section  exists  not  only  where  the  body  officer,  or  in- 
dividual appealed  to  has  direct  jurisdiction  or  power,  but 
also  in  the  cases  where  there  is  an  indirect  jurisdiction  or 
power  to  afford  redress:  as  thus  where  the  plaintiff  was 
a  justice  of  the  peace  for  the  county,  and  in  the  habit  of 

4  Suthm  v.  Plumridge,  16  Law  Times,  X.  S.  Til. 

a  Maitland  v.  Bramwell,  2  Fost.  &  F.  623. 

'■'  Humphreys  v.  Stillwell,  -J  Fosl  &  F.  590. 

4  Dickson  v.  Wilton,  1  Fost.  <k  F.  419 ;  see  Bell  v.  Parker,  10  Ir.  L.  R.  N.  S.  279. 


388  DEFENSES.  [Cll.  IX. 

acting-  at  petty  sessions  held  in  a  "borough.  The  defendant, 
an  elector  and  inhabitant  of  the  borough  signed  a 
memorial  addressed  to  the  Secretary  of  State  for  the 
Home  Department,  complaining  of  the  conduct  of  plaintiff 
as  a  justice  during  an  election  for  a  member  to  represent 
the  borough  in  parliament,  and  praying  that  he  would 
cause  an  inquiry  to  be  made  into  the  conduct  of  plaintiff, 
and  that  on  the  allegations  contained  in  the  memorial 
being  substantiated,  he  would  recommend  to  her  Majesty 
that  plaintiff  be  removed  from  the  commission  of  the 
peace.  The  jury  having  found  that  the  memorial  was 
Ijona  fide,  it  was  held  that  it  was  a  privileged  communica- 
tion, inasmuch  as  plaintiff  had  both  an  interest  and  a 
duty  in  the  subject-matter  of  the  communication;  and  the 
Secretary  of  State  had  a  corresponding  duty,  a  justice  of 
the  peace  being  appointed  and  removed  by  the  sovereign.1 
And  in  the  case  where  the  plaintiff  was  an  officer  in  the 
army,  and  the  defendant,  a  creditor  of  plaintiff's,  wrote 
concerning  plaintiff  to  the  Secretary  of  War,  it  was  held 
that  although  the  Secretary  had  no  direct  power  or 
authority,  yet  as  he  might  exercise  some  influence,  the 
communication  was  privileged.2 

An  additional  protection  to  persons  seeking  redress 
extra  judicially,  from  public  officers,  is  found  in  the  diffi- 
culty, referred  to  hereafter,  (§  37 7 a)  which  the  plaintiff 
may  experience  in  proving  the  publication  of  the  defama- 
tory matter. 

1  Harrison  v.  Bush,  5  El.  <fe  Bl.  344.  In  Rex  v.  Bayley  (3  Bac.  Abr.  tit.  Libel,  A 
2,  cited  5  B.  &  Aid.  647),  the  defendant  had  addressed  a  letter  to  General  TVilles  and 
the  four  principal  officers  of  the  guards,  to  be  by  them  presented  to  the  King,  stating 
that  the  prosecutor  had  obtained  from  him  (defendant  |  a  warrant  for  the  payment  of 
money  due  him  (defendant)  from  the  government  under  promise  of  paj-ing  the 
defendant  such  money,  and  that  the  prosecutor  had  received  the  money  and  not  paid 
it  over  to  defendant.  The  court  held  this  not  a  libel,  but  a  representation  of  an 
injury  shown  up  in  a  proper  way  for  redress ;  yet  neither  the  officers  nor  the  King 
coidd  give  the  defendant  direct  assistance  in  obtaining  payment  of  the  money 
wrongfully  withheld. 

2  Fairman  v.  Ives,  5  B.  <fe  Aid.  643  ;  Perhaps  Atkinson  v.  Congreve,  1  Ir.  L.  R.  K 
S.  may  be  within  the  same  rule. 


§  23Stf.]     EEDEESS    OTHERWISE    TIIAX    JUDICIALLY.  389 

§  238a.  That  applications  for  redress  extra  judicially, 
to  a  body  officer  or  individual  having  power  or  jurisdic- 
tion directly  or  indirectly,  to  afford  redress  are  privileged 
appears  to  be  well  settled,  and  the  decisions,  with  only 
two  exceptions,  either  assume  or  expressly  declare  that 
unless  the  power  or  authority  to  grant  relief  exists  either 
directly  or  indirectly,  the  publication  is  not  privileged  as 
thus :  where  the  defendant,  a  physician,  gave  a  certificate 
that  the  plaintiff  was  insane,  on  which  to  base  proceedings 
under  a  statute  to  have  the  plaintiff  confined  in  an  asylum ; 
for  the  charge  contained  in  this  certificate  the  plaintiff 
brought  an  action  against  the  defendant,  and  it  was  held 
that  he  could  justify  only  by  showing  that  the  provisions 
of  the  statute  under  which  the  certificate  purported  to 
have  been  given  had  been  strictly  complied  with.  And 
by  the  court,  "Where  one  intervenes  voluntarily  in  a 
special  proceeding  not  known  to  the  common  law,  and 
not  resulting  in  a  judgment  according  to  its  forms,  he 
must  see  that  jurisdiction  is  acquired,  and  that  there  is  in 
reality  a  proceeding  in  court,  before  he  can  claim  any 
privilege." 1  A  letter  written  to  the  Secretary  of  State, 
complaining  of  the  conduct  of  the  plaintiff  as  clerk  to  a 
board  of  magistrates,  was  held  not  to  be  privileged  because 
addressed  to  an  officer  not  having  power  to  redress  the 
wrong  complained  of.2  The  case  lastly  referred  to  was  affir- 
med in  the  Exchequer  Chamber.  So  where  the  defendant  at 
a  meeting  of  a  county  medical  society,  introduced  a  resolu- 

1  Perkins  v.  Mitchell,  31  Barb.  461. 

'Blaggv.  Start,  10  Q.  B.  899;  11  Jur.  181;  8  Law  Times,  135;  16  Law  Jour. 
39,  Q.  B.  In  an  action  for  libel  it  appeared  that  the  defendant  had  lodged  at  the 
plaintiff's  house  and  on  leaving  missed  a  memorandum  book  and  other  articles, 
whereupon  he  wrote  a  letter  to  the  plaintiff's  wife,  in  which  he  accused  the  plaintiff 
of  having  taken  the  missing  articles,  and  threatened  to  expose  him  if  he  did  not 
return  them  ;  the  jury  found  that  there  was  no  malice  in  fact, — Held,  nevertheless, 
the  sending  the  letter  to  the  wife  was  not  a  privileged  publication — she  had  no 
authority  or  power  to  redress  the  supposed  wrong.  (Wenman  v.  Ash,  13  C.  B.  836  ; 
22  Law  J.  Rep.  (N.  S.)  C.  P.  190;  17  Jur.  579;  1  Com.  Law  Rep.  51)2.)  A  letter 
written  merely  confidentially  is  not  thereby  privileged.  (Brooks  v.  iUancliard,  1  Cr. 
&M.  779;  3  Tyrw.  844.) 


390  DEFENSES.  [Cll.  IX. 

tion  for  tlie  expulsion  of  plaintiff,  a  member  of  said  society 
which  resolution — contained  matter  defamatory  of  the 
plaintiff;  in  an  action  for  libel  for  publishing  said  resolution, 
it  was  held  that  inasmuch  as  the  society  had  no  power  to 
expel,  a  member,  the  publication  could  not  be  privileged, 
as  a  means  of  seeking  redress.1  Again,2  where  the  defama- 
tory matter  was  contained  in  an  affidavit  made  by  the 
defendant,  at  the  request  of  one  H.  F.  to  be  presented  to 
the  Governor  of  the  State  of  New  York,  to  induce  said 
governor,  to  revoke  a  warrant  issued  by  said  governor,  for 
the  arrest  of  said  H.  F.  upon  a  requisition  from  the 
Governor  of  California.  After  a  finding  by  referees  in 
favor  of  the  defendant,  on  the  ground  that  the  publication 
was  privileged,  the  Supreme  Court  at  a  General  Tenn 
ordered  a  new  trial,  and  held  there  was  no  privilege 
because  the  governor  had  no  jurisdiction  to  revoke  his 
warrant,  the  court  saying  that  in  all  cases  of  seeking 
redress  the  "  tribunal  individual  or  body  must  be  vested 
with  authority  to  render  judgment,  or  make  a  decision  in 
the  case,  or  to  entertain  the  proceeding,  in  order  to  give 
them  the  protection  of  privileged  communications,"  One 
of  the  two  exceptions,  above  referred  is  the  case  where  the 
defendant  a  time  keeper  employed,  on  public  works  under 
a  public  department,  wrote  a  letter  to  the  Secretary  of  the 
Department,  reflecting  upon  the  contractor  for  the  works. 
The  secretary  had  no  authority  over  the  contractor,  but  it 
was  held  that  if  the  letter  was  written  in  good  faith,  al- 
though to  the  wrong  person  it  was  privileged.  But  that 
the  fact  of  the  communication  being  made  to  a  person 
having  no  authority  to  afford  redress,  was  a  circumstance 
from  which  want  of  good  faith  might  be  inferred.3  This 
was  but  a  nisi  prim  decision,  nevertheless  we  are  of  the 
opinion,  the  contrary  decisions,  not  with  standing,  that  we 

1  Fawcett  v.  Charles,  13  Wend.  473. 

2  Hosmer  v.  Loveland,  19  Barb.  111. 

3  Scarll  v.  Dixon,  4  Fost.  &  F.  250. 


§  2 3 9. J        REDRESS    OTHERWISE   THAX   JUDICIALLY.  391 

have  here  the  true  rule  of  law.  One  who  has  reasonable 
and  probable  cause  to  believe  himself  wronged,  should  be 
privileged  in  applying  to  any  source,  which  he  has  reason- 
able and  probable  cause  to  believe  can  grant  him  redress. 
In  seeking  redress  judicially,  a  want  of  jurisdiction  in  the 
court  to  which  the  complaint  may  be  exhibited,  does  not 
take  away  the  privilege  nor  should  it  where  the  redress  is 
sought  extra  judicially.1  The  other  of  the  two  exceptions 
above  referred  to  is  the  case,2  where  the  plaintiff  was  a 
district  school  teacher,  and  the  defendant  a  freeholder 
within  the  school  district.  The  alleged  libel  was  a  repre- 
sentation signed  by  the  defendants,  charging  the  plaintiff 
with  not  being  "  a  man  of  strictly  temperate  habits,  and 
good  moral  character  such  as  the  law  demands,"  etc.  This 
representation  was  delivered  to  the  local  superintendent 
of  schools,  who  not  conceiving  himself  authorized  to  act 
upon  it,  unless  it  came  through  the  school  trustees,  handed 
the  document  to  them.  On  the  trial  the  plaintiff  had  a 
verdict.  The  court  in  banc  granted  a  new  trial  and 
observed  that  the  publication  was  pr ima  facie  privileged 
and  not  the  less  so  because  made  by  mistake  to  the  wrong 
quarter. 

§  239.  Where  the  privilege  now  under  consideration 
may  be  exercised  by  word  of  mouth,  orally,  it  also  may  be 
exercised  by  writing ;  unless,  perhaps,  where  it  is  shown 
that  it  is  exercised  by  writing  rather  than  orally  to  serve 
some  unworthy  purpose ;  thus  where  an  alleged  libel  con- 
sisted of  charges  made  by  the  defendant  against  the  plain- 
tiff, a  constable,  contained  in  a  letter  to  a  meeting  of  rate- 
payers, it  was  held  that  inasmuch  as  the  charge,  if  made 
orally,  would  have  been  privileged,  it  was  privileged  when 
made  in  writing,  unless  the  plaintiff  could  establish  that  the 

1  See  note  1,  p.  348,  ante;  1  Wras.  Saund.  138,  Ed.  of  1871.  The  creditor  was  mis- 
taken in  Fairman  v.  Ives,  ante,  note  2,  p.  388  ;  and  the  court  held  the  defendant  pro- 
tected by  "probable  cause,"  in  Howard  v.  Thompson,  21  Wend.  830. 

2McIntyre  v.  McBean,  13  Up.  Can.  Q.  B.  Rep.  534. 


392  DEFENSES.  [Ch.  IX. 

defendant  wilfully  absented  himself  from  the  meeting  as 
a  pretence  for  writing.1  So  where  the  defendant  is  pri- 
vileged to  present  a  petition  or  memorial  for  redress,  he 
does  not  forfeit  his  privilege  by  presenting  the  petition  or 
memorial  to  different  individuals  to  obtain  their  signatures 
thereto,  nor,  as  it  seems,  by  printing  such  petition  or  mem- 
orial, provided  the  presenting  for  signatures  or  the  printing 
be  done  with  a  bona  fide  intent  to  cany  out  the  purpose 
of  the  petition  or  memorial,  and  not  otherwise.2  The 
plaintiff  was  employed  as  manager  of  the  factories  of  a 
joint  stock  conrpany,  and  the  auditors  of  the  company,  in 
auditing  the  plaintiff's  accounts,  appended  to  their 
report  the  following  statement : — "  The  shareholders 
will  observe  that  there  is  a  charge  of  13061.  for 
deficiency  of  stock,  which  the  manager  is  responsible  for. 
His  accounts  have  been  badly  kept,  and  have  been 
rendered  to  us  very  irregularly."  The  directors  submitted 
their  own  report,  together  with  that  of  the  auditors,  to  the 
ordinary  general  meeting  of  the  shareholders  of  the  com- 
pany, according  to  the  usual  practice,  and  it  was  resolved 
by  the  meeting  that  the  reports  should  be  printed  and 
sent  to  the  shareholders.  The  reports,  including  the  above 
statement,  were  accordingly  sent  to  a  printer  printed,  and 
circulated   among   the   shareholders,  and  used  at  an  ad- 


1  Spencer  v.  Amerton,  1  M.  &  Rob.  470. 

2  Vanderzee  v.  McGregor,  12  Wend.  455;  Cook  v.  Hill,  3  Sandf.  341 ;  Rex  v. 
Bailie,  21  State  Trials,  1 ;  Andr.  229;  Van  Wyck  v.  Aspinwall,  17  K  T.  190.  and 
ante,  note  2,  p.  386.  Where  in  an  action  of  slander  against  the  defendant,  a  surveyor, 
employed  by  a  committee  to  investigate  the  truth  of  reports  against  the  plaintiff,  as 
having  executed  improperly  contract  work  for  them,  which  the  defendant  alleged  on 
such  inquiry  to  be  the  case,  held  that  such  report  was  not  a  privileged  communication, 
it  being  found  by  the  jury  that  the  reports  originated  with  the  defendant  and  were 
false.  (Smith  v.  Matthews,  2  M.  <fe  Malk.  151.)  An  officer  of  the  navy  has  no  right 
to  make  communications,  except  to  the  government,  upon  subjects  with  which  he 
becomes  acquainted  in  his  professional  capacity  ;  and,  therefore,  a  letter  written  to 
Lloyd's  Coffee-house,  about  the  conduct  of  the  captain  of  a  transport-ship,  by  a 
lieutenant  who  was  superintendent  on  board,  was  held  not  to  be  a  privileged  communi- 
cation. (Harwood  v.  Green,  2  Car.  &  P.  141 ;  and  see  Robinson  v.  May,  2  J.  P. 
Smith,  3.) 


§  240.]  GIVING  INFORMATION  OR  ADVICE  GENERALLY.  393 

journed  meeting  of  the  shareholders.  The  plaintiff  hav- 
ing brought  an  action  for  libel  against  the  company ; 
held,  that,  as  it  was  the  duty  of  the  directors  to  communi- 
cate the  report  of  the  auditors  to  the  shareholder,  and  it 
was  for  the  interest  of  all  the  shareholders  to  be  informed 
of  the  report,  the  printing  and  publication  of  the  report 
were  prima  facie  privileged  ;  and  there  was  no  evidence 
of  express  malice  for  the  jury.1 

§  240.  Every  one  has,  also,  and  independently  of  the 
privileges  heretofore  referred  to,  the  right  to  publish  all 
that  he  has  reasonable  and  probable  cause  to  believe 
necessary  to  protect  his  person,  his  property,  or  his  repu- 
tation from  loss  or  injury.  As  where  the  defendant  adver- 
tised that  his  wife  had  eloped  from  him,  and  cautioned  all 
persons  from  trusting  her,  a  motion  for  a  criminal  informa- 
tion against  him  for  making  this  publication  was  denied, 
because  the  advertisement  was  the  only  means  he  could 
adopt  to  protect  himself.2  So  where  A.,  who  had  dealt 
with  the  defendant,  a  butcher,  suddenly  ceased  to  deal 
with  him,  alleging  as  a  reason  that  defendant  had  made 
charges  against  him,  A.,  for  meat  which  had  not  been 
delivered  at  A.'s  house,  the  defendant  wrote  a  letter  to 
A.,  protesting  his  innocence  of  the  alleged  overcharge, 
and  stating,  in  effect,  that  the  meat  had  been  improperly 
disposed  of  by  the  defendant's  servants.  For  writing  this 
letter,  the  plaintiff — whose  wife  was  a  servant  in  the  family 
of  A. — brought  an  action  for  libel ;  it  was  held  that  if  by 
the  letter  the  defendant  meant  bona  fide  to  defend  himself, 
it  was  a  conditionally  privileged  publication.3  The  plain- 
tiff, an  attorney's  clerk,  made  an   affidavit   in  a  suit  in 


1  Lawless  v.  Anglo  Egyptian  Cotton  Co.,  Law  Rep.  IV.  Q.  B.  262. 

1  Rex.  v.  Enes,  Andr.  229,  and  sec  ante,  §  226. 

3  Coward  v  Wellington,  9  C.  &  P.  531.    The  prosecutor  published  in  a  newspaper 
matter  reflecting  upon  tlie  character  of  A.    The  defendant,  an  attorney,  and  the  attor- 
ney for  A.,  publish e  I  a  counter-.- tatement,  held  that  if  such  statement  was  honestly 
intended  to  vindicate  A.,  it  was  privileged.     (Reg.  v.  Vcley,  4  Fost.  &  F.  1117.) 
26 


394  DEFENSES.  [Cll.  IX. 

which  the  defendant  appeared  for  an  opposite  party.  The 
affidavit  reflected  upon  the  defendant,  whereupon  defend- 
ant wrote  to  plaintiff's  employers  complaining  that  the 
affidavit  of  plaintiff  suppressed  the  truth.  The  defend- 
ant's letter  held  a  conditionally  privileged  publication.1 
And  where  Q.,  having  had  no  previous  knowledge  of  B.,  a 
trader,  sold  him  goods  to  the  amount  of  £62  10s.,  at  two 
months'  credit, — upon  going  to  B.'s  shop  at  the  expiration 
of  the  credit,  A.  found  that  the  whole  stock  in  trade, 
including  a  portion  of  the  goods  sold  by  him,  had  been 
sold  by  auction  the  previous  day,  by  B.'s  desire,  and  at  a 
reduction  of  30  per  cent.,  and  that  the  proceeds  were  in 
the  hands  of  S.,  the  auctioneer.  Upon  inquiry,  A.  could 
not  learn  where  B.  was  to  be  found.  He  thereupon  went 
to  his  attorneys,  and  they,  on  his  behalf,  served  on  S.  a 
notice  not  to  part  with  the  proceeds  of  the  sale,  the  said 
B.  having  committed  an  act  of  bankruptcy.  B.  had,  in 
fact,  committed  no  act  of  bankruptcy,  the  goods  having 
been  sold  for  the  purpose  of  his  retiring  from  business. 
Held,  by  Tindal,  C.  J.,  Coltman,  J.,  and  Erie,  J.  (Cresswell, 
J.,  dissentiente),  that  A.  had  such  an  interest  in  serving  the 
notice  as  to  render  it  a  privileged  communication,  if  it  was 
served  with  good  faith  and  under  the  bona  fide  belief  that 
B.  had  committed  an  act  of  bankruptcy.2  Where  the 
defendant  published  an  advertisement  as  follows:  "Ten 
guineas  reward.  Whereas,  by  a  letter  received  from  the 
West  Indies,  an  event  is  stated  to  be  announced  by  a 
newspaper  that  can  only  be  investigated  by  these  means, — 
this  is  to  request  that  if  any  person  can  ascertain  that  J.  D. 
(the  plaintiff,  describing  him)  was  married  previous  to 
9  A.  M.  on,  &c,  and  will  give  notice  to  J.  (the  defendant), 
he  shall  receive  the  reward," — held  that  if  the  publication 
was  with  the  bona  fide  view  of  finding  out  the  fact  referred 

1  Buckley  v.  Kiernan,  7  Ir.  L.  R.  N.  S.  75. 

2  Blackham  v.  Pugh,  15  Law  Jour.  Rep.  290,  C.  P. ;  2  C.  B.  611;  approved,  Davies 
v.  Sneed,  Law  Rep.  V,  Q.  B.  511. 


§  240.]  INFORMATION  OR  ADVICE  GENERALLY.  395 

to,  it  was  privileged,  and  the  jury  found  a  verdict  for  the 
defendant.1  And  where  the  libel  was  contained  in  an 
advertisement  stating  the  issue  of  process  against  the 
plaintiff,  and  that  he  could  not  be  found,  and  offering  a 
reward  for  such  information  as  should  enable  him  to  be 
taken ;  plea,  that  a  capias  had  been  issued  and  delivered 
to  the  sheriff,  and  that  the  plaintiff  kept  out  of  the  way, 
and  that  the  advertisement  had  been  inserted  at  the  request 
of  the  party  suing  out  the  writ,  to  enable  the  sheriff  to 
arrest ;  held  a  sufficient  defense.2  The  plaintiff  had  a  liti- 
gation with  an  insurance  company  of  which  the  defendant 
was  the  agent.  The  plaintiff  published  a  pamphlet  accus- 
ing the  directors  of  the  company  of  fraud,  &c.  This  was 
met  by  a  pamphlet  published  by  the  directors.  After- 
wards, a  person  desirous  of  effecting  an  insurance,  inquired 
of  defendant  as  to  the  truth  of  the  charges  contained  in 
the  plaintiff's  pamphlet,  and  thereupon  the  defendant 
handed  to  such  person  a  copy  of  the  pamphlet  published 
by  the  directors ;  for  this  the  plaintiff  sued  the  defendant, 
and  it  was  held  that  the  defendant's  act  was  prima  facie 
privileged,  and  that  if  he  acted  without  malice,  no  action 
could  be  maintained.3  An  underwriter,  in  discussing  with 
the  agent  of  the  assured  a  claim  for  a  total  loss,  made  a 
statement  purporting  to  be  founded  upon  a  letter  imply- 
ing a  design  on  the  part  of  plaintiff  to  make  a  dis- 
honest claim ;  this  was  held  to  be  privileged,  unless  made 
with  an  intent  improperly  to  reduce  plaintiff's  claim.4 
Plaintiff,  a  member  of  a  church  of  which  C.  was  curate, 
was  introduced  by  H.,  also  a  member  of  said  church,  to 
the  defendant,  the  incumbent  of  a  parish  in  which  plain- 

1  Delany  v.  Jones,  4  Esp.  191.  In  Lay  v.  Lawson,  4  Adol.  &  El.  798,  L'd  Denman, 
referring  to  Delany  v.  Jones,  said,  "I  have  great  doubt  whether,  there,  the  interest 
•which  the  wife  had  in  the  inquiry  could  justify  the  offering  a  reward  in  a  newspaper." 
See  Finden  v.  Westlake,  1  Mo.  &  Malk.  4G1. 

s  Lay  v.  Lawson,  4  Ad.  &  El.  795. 

3  Koenig  v.  Ritchie,  3  Fost.  &  F.  413. 

1  nancock  v.  Case,  2  Fost.  &  F.  71 1. 


396  DEFENSES.  [Ch.  IX. 

tiff  was  visiting,  and  where  lie  became  acquainted  with 
F.,  one  of  defendant's  parishioners.  F.  afterwards  sued 
plaintiff  for  the  price  of  a  horse  and  other  matters,  and 
defendant  was  applied  to  by  C.  at  plaintiff's  instance,  to 
arbitrate  between  plaintiff  and  F. ;  defendant  at  first 
declined,  and  on  being  further  pressed  to  act,  wrote  C,  as 
one  reason  for  not  acting,  that  plaintiff's  conduct  was  so 
bad  that  he  should  not  like  to  have  his  name  associated 
with  his  affairs;  and  he  enumerated  certain  charges 
which  he  had  heard  made  against  the  plaintiff,  adding 
that  it  grieved  him  much  to  make  these  statements 
respecting  a  man  who  evidently  wished  to  be  considered 
a  religious  man  and  a  good  church  man,  but  that  he 
thought  it  was  his  duty  to  unmask  him  to  C,  and  that 
he  would  be  thankful  to  be  enabled  to  tell  some  of  his 
neighbors  that  plaintiff's  position  at  C.'s  church  was  not 
quite  what  he  (plaintiff)  had  led  them  to  suppose  it  to 
be.  C.  handed  this  letter  to  plaintiff,  who  brought  an 
action  for  libel  against  defendant.  In  an  interview  which 
defendant  afterwards  had  with  said  H.,  defendant  com- 
plained of  the  action  which  had  been  brought  against 
him,  and  spoke  of  what  he  had  heard  against  plaintiff's 
character.  H.  assured  him  he  was  mistaken,  and  that  she 
would  question  plaintiff  about  the  truth  of  these  charges. 
She  did  so,  and  wrote  defendant  that  she  was  confident  he 
had  been  misinformed  about  plaintiff,  as  he  had  assured 
her  there  was  not  the  slightest  foundation  for  what  was 
reported  of  him,  and  stated  the  reasons  plaintiff  gave  in 
support  of  his  character.  Defendant  wrote  in  reply,  "  Time 
will  show  whether  I  have  been  misinformed  or  not  respect- 
ing Mr.  W.  (plaintiff).  A  writ  has  been  served  upon  me, 
and  a  public  investigation  must  therefore  take  place.  If 
he  states  on  oath,  in  the  witness  box,  what  he  has  stated 
to  you,  especially  as  to  the  charge  of  assault,  he  will  be 
most  certainly  prosecuted  for  perjury,  for  there  is  not  a 
shadow  of  a  doubt  but  that  the  complaint  of  the  servant 


§241.]  INFORMATION"  OR  ADVICE  GENERALLY.  397 

girl  is  correct."  Plaintiff  brought  another  action  for  libel 
in  respect  of  this  last  letter.  The  actions  were  consoli- 
dated. The  jury  found  there  was  no  malice,  and  it  was 
held  that  both  letters  were  privileged,  and  verdict  entered 
for  defendant.1 

§  241.  Every  one  who  believes  himself  to  be  possessed 
of  knowledge  which,  if  true,  doee-or  may  affect  the  rights 
and  interests  of  another,  has  the  right,  in  good  faith,  to 
communicate  ^ach  his  belief  to  that  other  (§§  243,  244).2 
He  may  make  the  communication  with  or  'without  any 
previous  request,  and  whether  he  has  or  has  not  personally 
any  interest  in  the  subject-matter  of  the  communication, 
('and  although  no  reasonable  or  probable  cause  for  the 
belief  may  exist.J  The  right  is  founded  on  the  belief. 
"  All  we  have  to  examine  is  whether  the  defendant  stated 
no  more  than  what  he  believed,  and  what  he  might  reason- 
ably believe,-<¥  he  stated  no  more  th$n  this,  he  is  not 
liable."3  If  A.  believes  that  B.  is  intending  to  rob 
C,  he  has  the  right  to  communicate  his  belief  to  C„ 
without  waiting  for  C.  to  inquire  on  the  subject ;  and  if 
in  so  doing  he  injures  B.,  B.  is  without  redress.  The 
exigencies  of  society  require  that  such  a  right  should  exist. 
A.'s  duty  to  B.  is  simply  not  unnecessarily  to  injure  him 
(§  48).  This  right  must  be  exercised  as  every  other  right 
is  required  to  be  exercised,  in  good  faith  (§  40)  ;  and  all 
communications  made  in  the  exercise  of  this  right  are 
conditionally  privileged  (§  209).4     The  existence  of  this 

1  Whitely  v.  Adams,  33  Law  Jour.  89,  C.  P. 

a  Davis  v.  Ueeves,  5  Ir.  L.  Rep.  N.  S.  79;  Owens  v.  Roberts,  6  id.  79. 

3  Cockburn,  Ch.  J.  Spill  v.  Maule,  Law  Rep.  IV.  Ex.  237.  If  a  man  act  bona 
fide  on  honest  belief  of  the  truth  of  statements.,  made  to  him  by  others  whom  ho 
believes  to  be  credible  persons,  he  is  justified  in  so  acting  upon  such  statements,  if  he 
believes  there  is  reasonable  and  probable  cause  for  his  so  doing-.  The  question  is 
not  whether  they  were  right  or  wrong-,  it  is  what  they  told  the  defendant.  (Coctburn 
Ch.  J.  Chatfield  v.  Comer  ford,  4  Fost.  &  F.  1008.)  Hearsay  is  probable  ground  for 
belief.  (Maitland  v.  Brarnwcll,  2  Fost.  <fc  F.  623;  Lister  v.  Perryman,  Law  Rep,  V. 
Ho.  of  Lords,  Add.  Cas.  365;  rev'sg  Perryman  v.  Lister,  Law  Rep.  in.  Ex.  197.) 

*  For   words   "  spoken   in   good  faith,  to   those  who  have  an  interest  in  the  com- 


398  DEFENSES.  [Ch.  IX. 

right,  as  will  presently  be  shown,  in  cases  where  the 
communication  is  made  by  one  having  no  personal  interest 
in  the  subject-matter  of  the  communication,  and  without 

»-"  any  previous  request  has  been  questioned,  neverthelessA^e 
feel  justified  in  laying  it  down  for  law  that  the  right  exists 
as  well  where  there  is  not  as  where  there  is  a  previous 
request,  and  whether  the  publisher  has  or  has  not  any 
such  personal  interest.  The  right,  as  we  conceive,  in  no 
wise  depends  either  upon  the  fact  of  a  previous  request 
or  upon  the  interest  of  the  publishers/although  the  fact 
that  the  communication  is  made  officiously,  as  it  is  termed, 
i.  e.,  unsolicited,  or  by  one  having  no  interests  involved, 
may  in  some  cases  have  a  tendency  to  disclose  the  motive 
of  the  publisher  in  making  the  publication),  The  right, 
wherefthe  publisher  is  interested,  or)where  the  communica- 
tion is  made  upon  the  request  of  the  party  in  interest,  seems 

x  never  to  have  been  doubted  f  thus  where  the  language 
published  imputed  habits  of  intemperance  to  the  plaintiff, 
a  dissenting  minister,  was  held  privileged  because  spoken 
in   answer  to  inquiries.1     So  a  letter  written  to  persons 

munication,  and  a  right  to  know  and  act  upon  the  facts  stated,"  no  action  can  be 
maintained  without  proof  of  express  malice.  (Shaw,  C.  J.,  Bradley  v.  Heath,  12 
Pick.  163.)  (If  the  words  are  spoken  in  good  faith,  no  malice  can  be  proved.  To 
prove  malice  would  be  to  prove  that  the  words  were  not  spoken  in  good  faith.)  The 
law  respects  communications  made  in  confidence,  notwithstanding  they  may  be  false 
and  erroneous,  and  prove  injurious  to  the  party.  This  rule  applies  equally  to  words 
written  and  spoken.  Note  to  Wyatt  v.  Gore,  Holt's  N.  P.  299;  and  see  ante,  note 
1,  p.  392.  And  one  part  of  a  publication  may  be  privileged,  because  made  to  a  person 
interested,  and  another  part  not  privileged  ;  thus  where  the  plaintiff  and  defendant 
were  jointly  interested  in  property  in  Scotland  of  which  C.  was  mnnager,  defendant 
wrote  to  C.  a  letter,  principally  about  the  property  and  the  conduct  of  the  plaintiff 
with  reference  thereto,  and  containing  a  charge  against  the  plaintiff  with  reference 
to  his  conduct  to  his  mother  and  his  aunt ;  held,  that  so  much  of  the  letter  as  related 
to  the  property  was  privileged,  but  the  remainder  was  not.  ( Warren  v,  Warren,  1 
Cr.  M.  &  R.  250  )     And  see  Humphreys  v.  Stillwell,  2  Fost.  «fc  F.  590. 

1  Warr  v.  Jolly,  6  C.  &  P.  497.  A  communication  made  bona  fide  upon  any 
subject  matter  in  which  the  party  communicating  has  an  interest,  or  in  reference  to 
which  he  has  a  duty,  is  privileged,  if  made  to  a  person  having  a  corresponding 
interest  or  duty,  although  it  contains  criminatory  matter  which  without  this 
privilege  would  be  slanderous  and  actionable.  (Harrison  v.  Bush,  5  El.  &  Bl.  344.) 
Where  a  party  has  a  mutual  interest  with  another,  he  is  justified  in  prevailing  on  him 
to  become  party  to  a  suit,  and  expressions  of  angry  and  strong  animadversion  on  the 


§    241.]  INFORMATION  OR  ADVICE  GENERALLY.  399 

who  employed  A.  as  their  solicitor,  conveying  charges 
injurious  to  his  professional  character  in  the  management 
of  certain  concerns  which  they  had  entrusted  to  him,  and 
in  which  B.,  the  writer  of  the  letter,  was  likewise  inter- 
ested, was  held  to  he  a  privileged  publication.1  And 
where  A.,  being  tenant  of  B.,  was  desired  by  B.  to  inform 
him  if  he  saw  or  heard  anything  respecting  the  game.  A. 
wrote  a  letter  to  B.,  informing  B.  that  his  game-keeper 
(the  plaintiff)  sold  game, — held,  that  if  A-  had  been  so 
informed,  and  believed  the  fact  so  to  be,  this  was  a 
privileged  communication,  and  that  the  game-keeper  could 
not  maintain  any  action  for  libel.2  So  where  the  plaintiff 
had  requested  his  friend  R.  A.  to  open  a  correspondence 
with  the  defendant  in  reference  to  certain  charges  made 
by  the  defendant  concerning  the  plaintiff,  held  that  letters 
written  by  the  defendant  to  B.  A.  were  privileged  com- 
munications.3 Where  in  an  action  for  libel  it  appeared 
that  the  plaintiff  was  churchwarden  and  defendant  clergy- 
man of  the  same  parish,  and  that  differences  having  arisen 
between  them  in  that  relation,  the  plaintiff  requested  that 
the  defendant's  future  communications  should  be  by  letter 
to  the  plaintiff's  clerk.  The  defendant  afterwards  applied 
by  letter  to  the  clerk  for  rent  which  he  conceived  to  be 
due  him  from  the  plaintiff.  The  clerk  answered  that 
defendant  denied  his  liability,  and  in  reply  the  defendant 
wrote  the  clerk,  "  This  attempt  to  defraud  me  of  the 
produce  of  the  land  is  as  mean  as  it  is  dishonest," — held 
that  the  communication  was  not  privileged  in  itself;  that 
it  was  a  question  for  the  jury  whether  the  language  was 

conduct  of  the  party  impeached,  unless  malicious,  are  privileged;  and,  in  the  case 
of  words,  the  jury  merely  take  into  consideration  the  whole  conversation,  to  see 
whel  ler  particular  words,  which  may  be  actiouable  in  themselves,  are  qualified  so  as 
not  to  convey  the  primary  meaning.     (Shipley  v.  Todhunter,  7  C  <fc  P.  680.) 

1  On  the  trial  a  juror  was  withdrawn.  (McDougall  v.  Claridge,  1  Camp.  267.) 
Representations  as  to  stockholders.  (Ilanna  v.  Dfi  Blaguere,  11  Up.  Can.  Q.  13.  310), 
as  to  school  teacher.     (Mclntyre  v.  McBean,  13  id.  584.) 

a  Cockayne  v.  nodgkisson,  5  C  &  P.  543. 

3  Hopwood  v.  Thorn,  8  C  B.  2!)3;    Layer  v.  Begg,  15  Ir.  L.  Rep.  N.  S.  458. 


400  DEFENSES.  [Ch.  IX. 

justified  by  the  occasion,  but  that  the  judge  was  right  in 
directing  the  jury  that  the  communication  was  actionable.1 
An  attorney  having  at  plaintiff's  desire  written  the  de- 
fendant demanding  payment  of  an  alleged  debt,  the  de- 
fendant sent  a  letter  to  the  attorney  containing  gross 
imputations  on  the  plaintiff's  character,  wholly  uncon- 
nected with  the  demand  made  upon  him ;  held  not  a 
privileged  communication,  although  the  jury  found  that 
the  letter  was  written  bona  fide,  and  negatived  malice  in 
fact.2  A.,  the  plaintiff,  was  party  to  a  suit  in  chancery 
by  B.,  his  next  friend,  who  was  answerable  for  the  costs 
of  the  suit.  A.  expressed  a  desire  to  change  his  solicitor 
in  that  suit,  which  coming  to  the  knowledge  of  the  de- 
fendant, he  wrote  a  letter  to  B.,  in  which,  amongst  other 
things,  he  stated  that  A.  had  been  apprenticed  to  a  civil 
engineer,  and  had  had  a  present  made  him  of  his  inden- 
tures, because  he  was  worse  than  useless  in  the  office ;  in 
action  of  libel  by  A.,  held  that  the  letter  was  a  privileged 
publication.3  The  owner  of  a  building  which  has  been 
set  on  fire  may  caution  the  persons  employed  by  him 
therein  against  a  particular  person,  suspected  of  being 
the  incendiary;  and  his  statements  to  them,  if  made  in 
good  faith  for  this  purpose,  are  privileged  communications, 
although  they  contain  an  unfounded  criminal  charge 
against  the  suspected  person.4     An  insurance  company,  of 

1  Tuson  v.  Evans,  3  Per.  &  D.  396.  "Where,  in  an  action  for  defamation,  it  appears 
that  a  defendant,  authorized  by  his  relation  to  the  party  addressed  to  make  a 
"privileged  communication,"  in  professing  to  do  so  makes  a  falsa  charge,  the 
nference  of  malice  is  against  him,  and  the   burden  is  put   on  him  to   show  that  he 

acted   bona  fide.     (Wakefield  v.  Smithwick,  4   Jones'   Law    (N.   Car),  327;    and   see 
Cole  v.  Wilson,  18  B.  Monr.  212.) 

2  Huntley  v.  "Ward,  6  C.  B.  N.  S.  514 ;  and  see  ante,  note  2,  p.  389.  A  claim  having 
been  made  against  defendant's  principal,  he,  defendant,  wrote  in  reply  and  explaining 
that  plaintiff  had  no  canse  of  action,  held  privileged.  (Halloran  v.  Thompson,  14 
Ir.  L.  It.  N.  S.  334.)  A  correspondence  was  had  between  plaintiff's  attorney,  and 
defendant  respecting  a  claim  lor  damages  made  by  plaintiff  against  defendant, 
defendant  in  justifying  himself  used  defamatory  language  concerning  the  plaintiff* 
held  privileged.     (Sayer  v.  Begg,  15  Ir.  L.  R.  N.  S.  468.) 

8  Wright  v.  Woodgate,  Tyr.  &  Gr.  12. 
4  Lawler  v.  Earle,  5  Allen,  22. 


§  241.]  INFOKMATION  OR  ADVICE  GENERALLY.  401 

which  the  defendant  was  president,  made  an  insurance 
against  fire  on  the  property  of  one  Graves  in  the  occupa- 
tion of  the  plaintiff ;  an  application  was  made  to  the  com- 
pany to  alter  the  policy ;  the  application  was  refused,  and 
notice  given  that  the  policy  would  be  cancelled.  Graves 
inquired  the  reason  for  this,  and  was  told  by  the  defend- 
ant that  the  company  would  not  insure  any  building 
occupied  by  plaintiff,  as  a  building  insured  by  the  com- 
pany and  occupied  by  the  plaintiff  had  been  burned  under 
very  suspicious  circumstances,  adding,  "  What  would  you 
think  of  a  man  being;  seen  round  the  store  at  two  or  three 
o'clock  in  the  morning  before  the  fire  ?  "  this  was  held  to 
be  a  privileged  communication.1  The  defendant  had  the 
right  to  give  to  Graves  a  reason  for  the  company  refusing 
to  insure  the  building  owned  by  him,  and  Graves  was 
interested  to  know  the  opinion  the  defendant  entertained 
concerning  the  plaintiff.  So  where  the  plaintiff  was 
secretary  of  the  Brewers'  Insurance  Company,  and  he 
being  charged  with  misconduct  was  called  upon  to  attend 
a  board  of  directors,  for  the  purpose  of  explanation,  but 
declined  to  do  so  ;  whereupon  the  directors,  after  hearing 
the  charges,  passed  a  resolution  that  he  had  been  guilty  of 
gross  misconduct,  and  dismissed  him.  The  defendant,  a 
director  of  that  company  and  also  of  the  London  Necro- 
polis Company,  of  which  the  plaintiff  was  auditor,  com- 
municated the  fact  of  the  plaintiff's  dismissal  "for  gross 
misconduct "  at  a  board  meeting  of  the  latter  company, 
and  proposed  a  resolution  to  dismiss  him,  and  in  answer 
to  an  inquiry  from  the  chairman,  said  that  the  misconduct 
consisted  in  "obtaining  money  from  the  solicitors  of  the 
company  under  false  pretences,  and  paying  a  debt  of  his 
own  with  it ;  "  in  an  action  for  slander  it  was  held  that  the 
publication  was  conditionally  privileged.2     The  defendant 

1  Liddlc  v.  Hodges,  2  Bosw.  537,  affirmed  18  N.  Y.  48. 

2  Harris  v.  Thompson,  13  C.  B.  329;   see  Parsons  v.  Surgey,  4  Fost.  &  F.  247. 


402  DEFENSES.  [CL  IX. 

being  a  competitor  with  the  plaintiffs  for  a  contract  with 
the  Navy  Board  for  African  timber,  the  plaintiffs  obtained 
the  contract.  Defendant  then  agreed  to  supply  plaintiffs 
with  a  portion  of  the  timber,  and  made  no  objection  to 
taking  their  bills  in  payment.  Afterwards  this  agreement 
was  rescinded,  and  defendant  wrote  to  a  merchant  who 
was  to  supply  the  timber  to  carry  out  the  agrement,  and 
of  whom  the  defendant  was  a  creditor,  and  the  sole 
correspondent  in  London,  reflecting  on  the  plaintiffs'  mer- 
cantile character,  and  putting  said  merchant  on  his  guard 
against  them.  In  an  action  for  libel  in  making  this  com- 
munication, a  verdict  having  been  found  for  the  defendant 
on  the  ground  of  privilege,  the  court  granted  a  new  trial.1 
The  plaintiff  was  a  dealer  in  beer,  buying  it  of  a  brewer 
and  selling  it  to  publicans.  Plaintiff  wishing  to  open  an 
account  with  the  defendant,  a  brewer,  one  L.,  became  his 
(plaintiff's)  surety  for  the  price  of  such  beer  as  defendant 
should  from  time  to  time  supply  to  plaintiff,  he  (defend- 
ant) promising  to  inform  L.  of  any  default  made  by 
plaintiff  in  his  payments.  After  plaintiff  and  defendant 
had  dealt  together  for  some  time,  defendant  went  to  L.  and 
spoke  in  very  abusive  terms  of  plaintiff,  saying  he  wished 
to  cheat  him,  and  that  he  had  returned  as  unmerchantable, 
beer  he  (plaintiff)  had  adulterated,  and  that  he  was  a 
rogue,  &c.  At  this  time  there  was  a  balance  due  defend- 
ant from  plaintiff  for  beer,  in  respect  of  which  L.  was 
liable  on  his  guarantee.  Lord  Ellenborough  inclined  to 
think  the  communication  conditionally  privileged;  he 
refused,  however,  to  non-suit  the  plaintiff,  and  a  juror  was 
withdrawn.2     Plaintiff  was   engaged   to  superintend  the 

1  Ward  v.  Smith,  6  Bing.  '749.  In  Van  Spike  v.  Cleyson,  Cro.  Eliz.  541,  it  is  said 
not  be  actionable  for  one  man  to  tell  another  confidentially  not  to  trust  another,  if 
done  only  by  way  of  counsel.  Words  of  a  tradesman  that  he  would  soon  be  a 
bankrupt,  when  spoken  in  confidence  and  friendship  as  a  caution,  held  not  to  be 
actionable  unless  the  jury  found  there  was  malice.     (Herver  v.  Dowson,  Bull.  N.  P. 

§•) 

2  Dunman  v.  Bigg,  1  Camp.  268;  and  see  Rex  v.  Jenneaur,  3  Bac.  Abr.  tit.  Libel, 
452;    2   Brownl.    151;    2  Burns'  Eccles.    Law,  179;    Wilson  v.  Stephenson,  2    Price, 

282. 


§  241^.]        INFOKMATION-  OE  ADVICE  GENEEALLY.  403 

works  of  a  railway  company,  and  subsequently,  at  a 
general  meeting  of  the  proprietors,  the  engagement  was 
not  continued,  but  a  former  inspector  was  reinstated. 
Afterwards  a  vacancy  occurred  in  the  situation  of  engineer 
to  the  commissioners  for  improving  the  river  Wear,  and 
the  plaintiff  became  a  candidate.  The  defendant  wrote 
to  C.  introducing  D.  as  a  candidate,  and  C.  having  written 
defendant  informing  him  that  another  person  (the  plaintiff) 
had  suceeded  in  obtaining  the  appointment,  the  defendant 
wrote  an  answer  to  C.  reflecting  on  the  conduct  of  the 
plaintiff  whilst  superintendent  of  the  railway  works.  It 
appeared  that  defendant  and  C.  were  both  shareholders  in 
the  railway  company,  and  that  defendant  managed  C.s' 
affairs  in  the  railway.  Held,  not  a  privileged  publica- 
tion.1 

§  241  a.  A  party  is  justified  in  giving  his  opinion  bona 
fide  of  the  respectability  of  a  tradesman  in  answer  to  an 
inquiry  concerning  him  / 2  thus  it  is  said  that  the  owner 
of  a  public  house  cannot  maintain  an  action  against  a 
neighboring  publican  for  giving  a  bad  character  of  such 
house  to  a  person  who,  being  in  treaty  for  purchasing  it, 
applied  to  the  defendant  for  information,  provided  (as  is 
stated)  there  is  some  evidence  of  the  truth  of  the  asser- 
tion.3 In  an  action  for  slander  by  the  plaintiffs,  bankers 
at  M.,  the  charge  was  that  in  answer  to  a  question  from 
one  Watkins,  whether  he  (defendant)  had  said  that 
plaintiffs'  bank  had  stopped,  defendant's  answer  was,  "  It 
was  true;  he  had  been  told  so."  The  proof  was  that 
Watkins  met  defendant  and  said,  "  I  hear  that  you  say  the 

1  Brooks  v.  Blanchnrd,  1  Cr.  &  M.  779. 

3  Storey  v.  Challands,  8  C.  <fe  P.  234;  otherwise  when  there  is  no  inquiry.  (Id.) 
3  Humbert*.  Ainge,  Manning's  Index,  tit.  Libel,  pi.  13.  Where  aperson  authorized 
to  make  a  privileged  communication  stated  fal  le  matter,  and  the  court  left,  it  to  the 
jury  to  say  whether  "in  communicating  what  he  had  lie  ird  and  believed  to  be  true," 
he  acted  in  good  faith,  and  there  was  no  evidence  that  he  had  heard  anything,  nor 
none  as  to  how  he  believed,  it  was  held  to  be  error.  (Wakefield  v.  Smithwick,  4 
Jones'  Law(N.  Car.),  827.) 


404  DEFENSES.  [Ch.  IX. 

bank  of  B.  <fc.  S.  (plaintiffs)  has  stopped.  Is  it  true?" 
Defendant  answered,  "  Yes,  it  is ;  I  was  told  so,"  and  added, 
"  It  was  so  reported  at  C,  and  nobody  will  take  their  bills, 
and  I  have  come  to  town  in  consequence."  Watkins  said, 
"  You  had  better  take  care  what  you  say ;  you  first  brought 
the  news  to  town,  and  told  Mr.  John  Thomas  of  it."  Defend- 
ant repeated,  "  I  was  told  so."  It  further  appeared  that  de- 
fendant had  in  fact  been  told  there  was  a  run  on  plaintiffs' 
bank,  but  not  that  it  had  stopped,  or  that  nobody  would 
take  the  plaintiffs'  bills.  It  was  held  on  the  trial  that  the 
publication  of  the  words  alleged  was  proved,  and  the  jury 
were  instructed  that  if  they  thought  the  words  were  not 
spoken  maliciously,  the  defendant  ought  to  have  a  verdict. 
The  jury  found  for  the  defendant.  On  plaintiffs'  motion  a 
new  trial  was  ordered.  On  granting  the  new  trial,  the  court 
discussed  at  length  the  question  of  malice,  and  the  supposed 
distinction  between  malice  in  fact  and  malice  in  law,  and 
stating  that  there  was  no  instance  of  a  verdict  for  the  de- 
fendant  on  the  ground  of  want  of  malice,  held  that  instead 
of  instructing  the  jury  that  if  the  words  were  not  spoken 
maliciously  they  should  find  for  the  defendant,  it  should 
have  been  left  to  the  jury  as  a  previous  question  whether 
the  defendant  understood  Watkins  as  asking  for  informa- 
tion for  his  own  guidance,  and  that  defendant  spoke  what 
he  did  merely  out  of  honest  advice  to  regulate  the  con- 
duct of  Watkins,  then  the  question  of  malice  in  fact  would 
have  been  proper  as  a  second  question  to  the  jury,  if  their 
minds  were  in  favor  of  the  defendant  upon  the  first.  *  * 
In  granting  a  new  trial  the  court  does  not  mean  to  say 
that  it  may  not  be  proper  to  put  the  question  of  malice  as 
a  question  of  fact  for  the  consideration  of  the  jury ;  for  if 
the  jury  should  think  that  when  Watkins  asked  his  ques- 
tion the  defendant  understood  it  as  asked  to  obtain  in- 
formation to  regulate  his  (Watkins')  conduct,  it  will  range 
under  the  cases  of  privileged  communication,  and  the 
question  of  malice  in  fact  will  then  be  a  necessary  part  of 


§  241«.]        INFORMATION  OE  ADVICE  GENERALLY.  405 

the  jury's  inquiry ;  but  it  was  not  left  to  the  jury  to  con- 
sider whether  the  question  was  understood  by  the  defend- 
ant as  an  application  for  advice,  and  if  not  so  understood 
the  question  of  malice  was  improperly  left  to  the  jury.1 
Where  a  party  interested  in  a  build ing  contract,  on  which 
the  plaintiff  had  been  engaged,  applied  to  the  defendant 
to  recommend  a  surveyor  to  measure  the  work,  when  the 
defendant  stated  that  he  had  seen  the  plaintiff  take  away 
some  of  the  materials,  upon  which  the  plaintiff's  employer 
enquired  of  the  defendant  if  he  had  seen  plaintiff  taking 
them  away,  when  he  alleged  that  he  had  seen  the  plaintiff 
taking  them,  and  that  he  hallooed  to  him ;  held,  that  the 
judge  properly  directed  the  jury  to  say,  first,  whether  the 
words  imputed  felony ;  and  secondly,  that  even  if  they 
did,  the  plaintiff  was  not  entitled  to  recover,  unless  malice 
were  expressly  shown,  or  the  jury  believed,  from  the  cir- 
cumstances, that  the  defendant  was  actuated  by  malicious 
motives.2  Where  A.  had  sold  goods  to  B.,  and  afterwards, 
and  before  the  delivery  of  the  goods,  C,  without  being 
asked  or  solicited  in  any  way  to  do  so,  made  representa- 
tions to  A.  injurious  to  the  credit  of  B.  The  representa- 
tions were  held  not  to  be  privileged,  because  made  with- 
out any  previous  request.3'  And  where  A.,  seeing  that 
apartments  were  to  let  at  a  house  occupied  by  B.,  inquired 
who  was  the  landlord,  of  C.  (a  neighbor  of  B.'s)  ;  C.  told 
him,  and  added  that  B.  had  not  paid  his  rent,  and  that  if 
A.  moved  in  his  goods  they  would  be  seized.  B.  having 
sued  C.  for  slander,  the  judge,  at  the  trial,  told  the  jury 
"  he  thought  it  was  a  privileged  communication  by  C, 
unless  they  were  of  opinion  it  was  made  maliciously ;  that 
the  question  for  them  was,  did  the  defendant  honestly 
believe,  at  the  time  he  spoke  the  words,  that  the  statement 
contained  in  them  was  true,  or  was  he  actuated  by  malice 

1  Bromage  v.  Pro33er,  4  B.  &  C.  247 ;  6  Dowl.  &  R.  29G. 

s  Kine  v.  Scwell,  3  M.  &  W.  297. 

s  King  v.  Watts,  8  C.  &  P.  614 ;  and  see  Tattison  v.  Jones,  3  M.  &  R.  101. 


406  DEFENSES.  [Ch.  IX. 

in  making  such  statement  ? — held  that  there  was  no  mis- 
direction. But  the  court  granted  a  new  trial,  not  being 
satisfied  of  the  fact  whether  C.'s  statements  were  made 
officiously  or  in  answer  to  A.'s  inquiries.1  The  plaintiff 
was  foreman  to  one  Bryer,  a  bone  merchant.     In  October, 

1865,  defendant  gave  Bryer  an  order  for  100  quarters  of 
sheep's  hoofs.  Plaintiff  by  mistake  delivered  120  quar- 
ters. On  the  day  following  the  delivery,  plaintiff  informed 
a  clerk  of  the  defendant  of  the  mistake,  and  made  an  ad- 
ditional charge  in  defendant's  account.      In  September, 

1866,  defendant  called  on  Bryer,  and  said,  "  I  lay  20  quar- 
ters of  sheep's  hoofs  to  your  foreman  and  my  clerk.  There 
was  an  overture  made  by  your  foreman  to  divide  the  price 
of  the  20  quarters,  and  pocket  the  money  between  them. 
It  has  been  on  my  mind  some  time,  and  it  is  best  to  let 
you  know  it.  Your  foreman  made  improper  overtures  to 
my  clerk  to  get  the  money  for  those  20  quarters  and  di- 
vide whatever  the  amount  was,"  this  was  held  to  be 
privileged.2  Whether  a  caution  not  to  trust  another,  bona 
fide  given  to  a  tradesman,  without  any  inquiry  on  his  part, 
is  a  privileged  communication,  was  discussed  in  Bennett  v. 
Deacon,3  and  it  was  held  by  Tindal,  Ch.  J.,  and  Erie,  J., 
that  it  was,  and  by  Coltman  and  Cresswell,  JJ.,  that  it 
was  not.  The  effect  of  a  previous  inquiry  was  very  elabo- 
rately discussed  in  a  case  where  C,  the  mate  of  a  ship, 
wrote  to  the  defendant,  falsely  charging  his  captain  (the 
plaintiff)  with  having  endangered  the  vessel  and  lives  of 
the  crew  by  continued  drunkenness.  The  vessel  was  at 
this  time  in  port,  and  likely  to  continue  there  a  few  days. 
The  defendant,  who  was  slightly  acquainted  with  the 
owner  of  the  vessel,  but  was  not  interested  in  the  vessel, 
and  had  no  inquiry  made  of  him,  believing  in  the  truth  of 
the  letter,  showed  it  to  the  owner,  who,  in  consequence, 

1  Chapman  v.  Wright,  1  Am.  241. 

2  Caulfield  v.  Whitworth,  18  Law  Times,  N,  S.  527. 

8  2  Com.  B.  628;  and  see  Lewis  v.  Chapman,  16  N.  Y.  369. 


§  241.]  INFORMATION  OR  ADVICE  GENERALLY.  407 

dismissed  the  captain.  In  an  action  for  libel  by  the  cap- 
tain, upon  these  facts  appearing  on  the  trial,  the  chief 
justice  directed  the  jury  that  if  the  defendant  acted  hon- 
estly and  bona  fide,  the  publication  was  justifiable,  and 
their  verdict  must  be  for  the  defendant ;  if  otherwise,  for 
the  plaintiff.  The  jury  found  a  verdict  for  the  defendant. 
On  a  motion  for  a  new  trial,  after  the  case  had  been,  at 
the  request  of  the  court,  twice  argued,  held,  by  Tindal, 
C.  J.,  and  Erie,  J.,  that  the  publication  was  justifiable,  and 
that  the  direction  to  the  jury  was  right ;  per  Coltman,  J., 
and  Cresswell,  J.,  that  the  direction  was  wrong ;  the  court 
being  equally  divided,  the  motion  for  a  new  trial  was 
denied,  and  the  defendant  had  judgment.1  Where  W.  went 
to  inquire  of  defendant  the  address  of  plaintiff,  who  had 
previously  been  a  tenant  of  the  defendants,  in  the  course 
of  a  conversation  which  ensued,  defendant  spoke  dispar- 

3  Coxhead  v.  Richards,  15  Law  Jour.  R.  278,  C.  P. ;  10  Jur.  984  ;  2  C.  B.  569.  In 
our  opinion,  the  Chief  Justice  and  Justice  Erie  were  right,  and  Justices  Cresswell 
and  Coltman  wrong,  and  of  the  like  opinion  were  the  court  in  Davis  v.  Reeves,  5  Ir. 
L.  liep.  N.  S.  79.  The  importance  of  the  principles  involved  justifies  the  reiteration 
of  our  conclusion  that  the  material  question  in  such  a  case  is,  Wrs  the  communication 
made  bona  fide  to  protect  the  interests  of  the  person  spoken  to,  without  regard  to  its 
effect  upon  the  party  spoken  of",  and  without  any  ill-will  towards  or  desire  to  injure 
the  person  spoken  of;  if  yea,  it  is  privileged,  and  the  absence  or  presence  of  a  previ- 
ous request  is  only  material  as  evidence  of  the  intent.  This  is  conceded  to  be  the 
law  in  the  case  of  an  employer  giving  what  is  termed  a  character  to  an  ex-employe, 
and  we  shall  show  (§  245)  this  latter  act  comes  within  the  general  rule  of  a  communi- 
cation made  to  prottct  the  interests  of  the  person  to  whom  the  communication  is 
made.  On  the  argument  of  Coxhead  v  Richards,  2  C.  B.  591,  Sir  T.  Wilde,  for  the 
plaintiff,  says:  "The  cases  as  to  characters  of  servants  are  not  in  point.  Judges  may 
have  been  wrong  in  supposing  that  a  former  master  stands  in  a  peculiar  position.  It 
ma//  be  said  that  the  servant  authorizes  the  master  to  libel  him"  (note,  p.  421,  pod).  But, 
right  or  wrong,  the  cases  proceed  upon  that  distinction.  (Erie,  J. :  In  those  cases  it 
is  perfectly  immaterial  whether  the  party  was  a  voluntees;  the  sole  question  is, 
whether  the  information  was  given  honestly  and  bona  fide.  Cresswell,  J. :  Mr. 
Justice  Bayley  deals  much  more  clearly  with  the  principle  upon  which  this  class  of 
cases  proceeds  than  Lord  Tenterden  does,  in  Pattison  v.  Jones.)  And  at  pap;e  609, 
Erie,  J.,  denies  that  the  relation  of  master  and  servant  is  the  material  one  in  cases  of 
privileged  communication.  The  action  of  the  defendant  in  the  case  now  before  us 
seems  to  be  as  consistent  with  a  natural  and  praiseworthy  impulse  to  protect  the 
interest  of  the  ship-owner,  and  to  protect  the  lives  of  the  persons  committed  to  the 
plaintiffs  care,  as  with  a  desire  to  injure  the  pluiutiff,  and  should  not  be  considered 
as  by  itself  evidence  of  malice. 


408  DEFENSES.  [Ch.    IX. 

agingly  of  the  plaintiff,  and  although  W.  told  defendant 
he  did  not  come  to  inquire  into  plaintiff's  character,  but 
only  to  obtain  his  address,  defendant  continued  to  speak 
concerning  the  plaintiff,  and  used  words  imputing  that  he 
was  a  swindler,  but  added  that  he  spoke  in  confidence,  in  an 
action  for  these  words  alleging  special  damage,  it  was  held 
proper  to  leave  it  to  the  jury  to  say  whether  defendant  acted 
with  malice  or  bona  fide  for  the  purpose  of  putting  W.  on  his 
guard.1  The  defendant  being  tenant  to  A.  of  a  house,  B.,  the 
agent  of  A.,  directed  the  plaintiff  to  do  some  repairs  at  the 
house.  The  plaintiff  did  the  repairs,  but  in  a  negligent  man- 
ner, and  during  the  progress  of  the  work  got  drunk ;  cir- 
cumstances occurred  which  induced  the  defendant  to  believe 
that  the  plaintiff  had  entered  his  (defendant's)  cellar,  and 
taken  his  cider  deposited  there.  Two  days  afterwards,  de- 
fendant met  the  plaintiff  in  the  presence  of  D.,  and  charged 
him  with  having  got  drunk  and  spoiled  the  work,  and 
broken  into  his  (defendant's)  cellar.  The  defendant  after- 
wards told  D.,  in  the  absence  of  plaintiff,  he  was  certain 
plaintiff  had  broken  open  the  door.  On  the  same  day,  the 
defendant  complained  to  B.  that  plaintiff  had  been  negligent 
with  the  work,  had  got  drunk,  and,  as  he  thought,  had 
broken  open  his  cellar  door.  In  an  action  of  slander  for 
these  three  several  publications,  held,  that  the  first  and 
third  publications  were  conditionally  privileged,  and  the 
second  was  not  privileged.2  Where  the  defendant,  a  son- 
in-law,  addressed  a  letter  to  his  mother-in-law,  about  to 
marry  the  plaintiff,  containing  slanderous  imputations 
against  him ;  held,  that  the  occasion  justified  the  writing, 
and  that  the  j^iry  were  to  say  whether  the  defendant 
acted  bona  fide,  and  under  a  belief  of  the  truth,  although 
the  imputations  were  false,  and  that  such  communications 
were  to  be  regarded  liberally,  unless  a  clearly  malicious 

1  Picton  v.  Jackman,  4  C.  &  P.  23*7. 

1  Toogood  v.  Spyring,  1  Cr.  M.  &  R.  181 ;  4  Tyrw.  582. 


§  241rt.]      INFORMATION    OR     ADVICE    GENERALLY.  409 

intention  was  manifest  in  the  act.1  That  the  defendant 
know  of  the  falsity  of  the  charge  published,  is  a  fact  from 
which  malice  may  be  inferred.2  A  letter  to  a  woman 
containing  defamatory  matter  concerning  her  suitor,  can- 
not be  justified  on  the  ground  that  the  w~riter  was  her 
friend  and  former  pastor,  and  that  the  letter  was  written 
•at  the  request  of  her  parents,  who  assented  to  all  its  con- 
tents.3 So  if  one  not  having  been  inquired  of,  write  to 
the  family  of  a  woman  that  the  man  she  is  about  to  marry 
has  been  imprisoned  for  larceny,  the  communication  is  not 
privileged.4  But  where  the  wife  of  A.,  prior  to  her  de- 
cease, made  a  request  to  B.,  after  her  (A.'s)  decease,  to 
look  to  and  advise  her  daughters.  The  wife  of  A.  died, 
and  he  remarried.  B.  told  the  daughters  of  A.'s  deceased 
wife  that  their  step-mother  was  a  loose  woman,  and  that 
they  ought  to  leave  their  home ;  this  was  held  to  be  a 
privileged  publication.5  The  plaintiffs,  printers  at  M.,  had 
been  employed  by  the  defendant,  the  deputy  clerk  of  the 


1  Todd  v.  Hawkins,  8  C.  &  P.  88 ;  2  M.  &  Rob.  20.  The  court  having  instructed 
the  jury  "  that  confidential  communications,  made  in  the  usual  course  of  business, 
or  of  domestic  or  friendly  intercourse,  should  be  liberally  viewed  by  juries," 
held  that  the  charge  was  right.  (Stallings  v.  Newman,  26  Ala.  300.)  A  grand  jury 
had  an  indictment  for  theft  of  money  before  them,  and  a  brother  of  the  man  who 
had  lost  the  money,  returning  from  the  court,  stated  that  fact  in  answer  to  inquiries 
made  of  him,  and  said  that  the  general  opinion  was,  that,  if  a  certain  person  swore 
what  he  had  stated,  the  accused  would  be  convicted.  This  brother  was  afterwards 
sued  for  slandering  the  accused,  by  saying  that  "  he  believed  he  stole  the  money," 
and  it  appeared  that  the  words  laid  in  the  declaration,  if  spoken  at  all  of  the  plaintiff, 
were  spoken  in  a  private  conversation  with  a  brother  of  the  defendant,  both  being 
brothers  of  the  man  whose  money  had  been  stolen,  and  were  overheard  by  one  who 
had  been  employed  to  listen.  Held,  that  the  occasion,  and  the  relationship  between 
the  parties,  afforded  a  prima  facie  justification,  sufficient  to  defeat  the  action,  in  the 
absence  of  any  other  proof  of  malice  than  what  arose  from  the  mere  speaking  of  the 
■words.     (Faris  v.  Starke,  9  Dana,  128.) 

8  Hartwell  v.  Vcsey,  3  Law  Times,  N.  S.  275.     See  post,  §  389. 

8  Joannes  v.  Bennett,  5  Allen  (Mass.),  169. 

*  Krebs  v.  Oliver,  12  Gray,  239.  When  A,  a  relative  of  defendant,  was  about  to 
marry  one  C,  the  defendant  wrote  a  letter  to  B,  a  sister-in-law  of  A,  containing  de- 
famatory matter  concerning  C,  and  requesting  B  to  repeat  such  matter  to  A,  held 
privileged  (Atkinson  v.  Congreve,  7  Ir.  L.  R.  N.  S.  109). 

•  Adcock  v.  Marsh,  8  Ired.  360. 

27 


410  DEFENSES.  [CL  IX. 

peace  for  the  county  of  K.,  to  print  the  register  of  electors 
for  the  county,  the  expense  of  which  was  defrayed  from 
the  county  rate,  and  allowed  by  the  justices  at  quarter 
sessions;  afterwards  the  defendant  employed  another 
printer,  who  agreed  to  do  the  work  at  a  lower  rate  than 
that  which  the  plaintiff  required,  and  he  wrote  a  letter  to 
the  "finance  committee"  appointed  to  superintend  such, 
expenses,  in  the  conclusion  of  which  he  imputed  improper 
motives  to  the  plaintiffs  in  the  demand  which  they  made, 
and  characterized  their  demand  as  "  an  attempt  to  obtain 
a  considerable  sum  of  money  from  the  county  by  misre- 
presentation." In  an  action  for  libel,  it  was  held  that  the 
occasion  of  writing  the  letter  prima  facie  rebutted  the 
presumption  of  malice,  but  that  it  was  a  question  for  the 
jury  whether  the  sentence  complained  of  as  exceeding  the 
privilege  was  evidence  of  malice.1  The  defendant,  bona 
fide  believing  that  the  plaintiff,  who  was  a  clerk  to  one 
M.,  a  customer  of  the  defendant's,  and  who  had  been  sent 
to  the  defendant's  shop  by  M.,  had,  while  there,  stolen  a 
box  from  an  inner  room,  went  to  M.,  and,  after  telling  him 
of  his  loss,  intimated  his  suspicion  of  the  plaintiff,  saying, 
"  There  was  no  one  else  in  the  room,  and  he  must  have 
taken  it."  Held,  that  the  communication  was  privileged 
by  the  occasion.2  A  letter  written  to  B.,  concerning  the 
plaintiff,  who  was  steward  of  B.'s  estate,  was  held  to  be 
privileged.3  A  communication  made  by  one  subscriber  to 
a  charity  to  another  subscriber  to  the  same  charity,  respect- 
ing the  conduct  of  the  plaintiff,  the  medical  attendant  in 
the  employ  of  such  charity,  held  not  to  be  privileged.4 


1  Cooke  v.  Wildes,  5  El.  &  Bl.  328 ;  24  Law  Jour.  Rep.  N.  S.  367,  Q.  B. ;  1  Jur.  N. 
S.  610. 

5  Amann  v.  Damm,  8  C.  B.  N.  S.  597. 

3  Cleaver  v.  Senaude,  1  Camp.  268«. 

4  Martin  v.  Strong,  5  Adol.  <fe  El.  535;  1  Nev.  <fe  P.  29.  A  letter  written  by  the 
defendant,  a  subscriber  to  a  charity,  to  the  managing  committee,  impugning  the 
moral  character  of  the   plaintiff,  the  secretary  of   said  charity,   in  reference  to  a 


§  24 1&.]       INFORMATION    OR   ADVICE    GENERALLY.  411 

Where  the  alleged  libel  was  contained  in  a  hand-bill 
offering  a  reward  for  the  recovery  of  bills,  and  stating 
that  the  plaintiff  was  believed  to  have  embezzled  them ; 
held,  that  if  done  with  the  view  solely  to  protect  persons 
liable  on  the  bills,  or  for  the  conviction  of  the  offender,  it 
was  a  good  defense,  and  that,  in  order  to  show  the  bona 
Jides  of  the  defendant,  evidence  of  his  having  preferred  a , 
charge  of  the  same  nature  against  the  plaintiff  was  admis- 
sible.1 A  communication  by  a  landlord  to  his  tenant, 
respecting  the  conduct  of  sub-tenants,  or  persons  in  the 
employ  of  the  tenant,  is  conditionally  privileged ;  as  where 
the  defendant  complained  to  E.,  his  tenant,  that  her 
lodgers,  of  whom  the  plaintiff  was  one,  behaved  improp- 
erly at  the  windows,  and  he  added  that  no  moral  person 
would  like  to  have  such  people  in  his  house.2  So  com- 
munications made  by  an  employer  to  his  employee,  or  by 
an  employee  to  his  employer,  are  conditionally  privileged 
in  certain  cases.  Thus,  defamatory  words  spoken  by  an 
employer  to  his  overseer,  intended  to  protect  the  employ- 
er's private  interests  and  property,  spoken  without  malice 
were  held  privileged.3  So  where  the  plaintiff  was  a  wine 
merchant,  and  the  defendant  the  surgeon  to  a  Poor  Law 
Union.  The  plaintiff  made  a  proposal  to  supply  wine  for 
idie  use  of  the  sick  paupers,  defendant  advised  the  Board 
of  Guardians  not  to  accept  plaintiff's  proposal,  alleging 
that  the  wine  which  plaintiff  would  supply  would  not  be 


person  whom  defendant  had  recommended  as  matron  ;  and  a  second  letter  by  the 
defendant  to  said  commit!  ec,  in  answer  to  inquiries  made  by  them,  and  also  oral 
Btatemenis  made  by  the  defendant  to  said  committee,  were  held  to  be  i>rivile"-ed  if 
mnde  with  an  honest  and  reasonab'.c  belief  of  their  truth.  (Maitland  v.  Bramwell,  2 
Fost.  &  F.  623 ;  and  see  Lawles  v.  Anglo-Egyptian  Cotton  Co.,  Law  Rep.  IV,  262, 
Q.  B.) 

1  Finden  v.  Westlake,  1  Mo.  &  Malt  461. 

1  Knight  v.  Gibbs,  3  New  <fe  M.  467;  1  Adol.  &  El.  43.  Besides  that  the  tenant 
was  interested  to  know  the  character  of  her  lodgers,  the  defendant  was  interested  to 
maintain  the  reputation  of  his  house. 

3  Easley  v.  Moss,  9  Ala.  266. 


412  DEFENSES.  [Ch.  IX. 

of  the  kind  represented.  Defendant's  language  was  held 
privileged.1  The  communication  of  an  agent  to  his  prin- 
cipal, touching  the  business  of  his  agency,  and  not  going 
beyond  it,  is  privileged,  and  is  not  actionable  without 
proof  that  the  defendant  did  not  act  honestly  and  in  good 
faith,  but  intended  to  do  a  wanton  injury  to  the  plaintiff.2 
The  defendants,  bankers  at  L.,  received  from  C.  &,  Co.,  of 
Y.,  for  collection,  a  note  drawn  by  plaintiffs,  merchants  at 
L. ;  the  plaintiffs  took  up  the  note  at  maturity,  the  19th 
of  April,  by  giving  a  draft  on  defendant's  bank,  in  which 
they  kept  their  account.  The  draft  overdrew  the  plaint- 
iffs' account,  but  was  accepted  by  a  clerk  of  the  defendant, 
who,  in  reply  to  an  offer  of  one  of  the  plaintiffs  to  transfer 
an  amount  standing  to  his  individual  credit  sufficient  to 
meet  the  check,  declared  that  to  be  unnecessary.  The 
plaintiffs'  account  was  made  good  on  the  25th  of  April, 
and  on  28th  of  April  defendants  remitted  to  C.  &  Co.  the 
amount  of  the  note,  and  added  a  postscript :  "  Confidential. 
Had  to  hold  over  a  few  days  for  the  accommodation  of  L. 
&  H." — the  plaintiffs.  On  the  trial,  there  was  no  evidence 
as  to  malice;  the  plaintiffs  had  a  verdict  on  which  judg- 
ment was  entered,  and  the  case  went  to  the  Court  of  Ap- 
peals, where  the  judgment  was  reversed,  and  a  new  trial 
ordered ;  and  the  court  said,  "  Assuming  that  the  defend- 
ant made  the  communication  in  perfect  good  faith,  as  we 
must  on  this  question  of  privilege,  his  act  was  not  to  be 
deemed  officious,  as  it  related  to  the  very  business  with 
which  he  was  intrusted." 3  The  sheriff  levied  upon  certain 
cattle  of  W.,  and  they  were  wrongfully  driven  away, 
whereby  he  was  likely  to  be  damnified ;  he  employed  C.r 
a  law  student,  to  ascertain  the  facts,  and  to  advise  what 
course  it  was  best  to  pursue ;  held  that  C.'s  letter  to  the 


1  Murphy  v.  Kellet,  13  Ir.  L.  R.  N.  S.  488. 
5  Washburn  v.  Cooke,  3  Denio,  110. 
8  Lewis  v.  Chapman,  16  N.  Y.  369;  rev'g  19  Barb.  253. 


§  241  &.]       DEFORMATION   OR   ADVICE   GENERALLY.  413 

sheriff,  stating  facts  implicating  W.,  and  advising  Lis  ar- 
rest for  larceny  of  the  cattle,  was  privileged.1 

§  24 1&.  The  communication  of  a  pastor  to  his  parish- 
ioners, relating  to  matters  not  spiritual,  is  not  necessarily 
privileged;  as  where  the  plaintiff,  who  had  been  for 
twenty  years  schoolmaster  at  the  national  school  of  the 
adjoining  parishes  of  C.  and  I.,  of  which  the  defendant, 
the  rector  of  C,  and  another  person,  the  vicar  of  I.,  were 
trustees,  was  requested  by  the  defendant  to  undertake  the 
Sunday-school  of  his  parish ;  he  declining  to  do  so,  was  re- 
moved from  the  mastership  of  the  national  school;  he 
afterwards,  intending  to  gain  a  livelihood  by  it,  set  up  a 
school  in  the  defendant's  parish,  in  a  school-room  used  as 
a  dissenting  chapel.  In  a  letter  addressed  to  his  parish- 
ioners, the  defendant  told  them  that  the  plaintiffs  attempt 
betrayed  a  spirit  of  opposition  to  authority,  and  justified 
the  managers  of  the  national  school  in  removing  him ;  that 
"  no  rightly-disposed  Christian,  who  received  in  simple 
faith  the  teaching  of  inspiration,  '  Obey  them  who  have 
the  rule  over  you,  and  submit  yourselves,'  could  expect 
God's  blessing  to  rest  upon  such  an  undertaking,"  and 
warned  them  against  countenancing  it,  either  by  subscrip- 
tions or  sending  their  children  to  it  for  instruction ;  that 
it '  would  be  a  schismatical  school,  and  those  who  aided 
the  plaintiff  in  any  way  would  be  partakers  with  him  in 
his  evil  deeds ;  they  were  to  mark  them  which  cause  divi- 
sions and  offenses,  and  avoid  them,  &c.  On  the  trial,  the 
presiding  judge  held  the  communication  a  privileged  one, 
and  in  the  absence  of  any  evidence  of  malice,  ordered  a 
verdict  for  the  defendant ;  on  motion  for  a  new  trial,  this 
direction  was  held  erroneous,  and  that  the  jury  should 
have  determined  whether  the  publication  was  not  malici- 
ous on  its  face.2 

J  Washburn  v.  Cooke,  3  Denio,  110. 
3  Gilpin  v.  Fowler,  9  Ex.  615;  23  Law  Jour.  Rep.  N.  S.   152,  Ex.;  18  Jur.  292. 


414  DEFENSES.  [Ch.    IX. 

§  24:1c.  A  customer  may  in  good  faith  complain  to  a 
tradesman  with  whom  he  deals  of  anything  he  may  deem 
irregular  or  dishonest  in  the  conduct  of  such  tradesman 
towards  him  (the  customer) ;  as  where  the  plaintiff,  a 
butcher,  sold  meat  to  the  defendant,  and  defendant  after- 
wards called  at  plaintiff's  shop,  and,  in  the  presence  of 
several  of  his  customers,  said :  "  I  intended  to  have  dealt 
with  you  but  shall  not  do  so,  for  you  changed  the  lamb 
that  I  bought  of  you  for  a  coarse  piece  of  mutton."  Held 
that  if  the  statement  was  made  in  good  faith,  it  was  priv- 
ileged.1 And  where  the  defendant,  a  customer,  of  the 
plaintiff,  a  corn-dealer,  went  to  the  place  of  business  of  the 
plaintiff,  and  using  abusive  language  to  plaintiff  in  a 
loud  and  angry  tone  of  voice,  said,  among  other  things : 
I  know  all  about  you  and  your  family,  and  you  have 
robbed  me  ever  since  I  have  dealt  with  you.  Held  that 
the  jury  were  to  determine  from  the  language  used  and 
from  the  tone  and  manner  in  which  it  was  used,  whether 
the  defendant  was  merely  in  good  faith  making  a  com- 
plaint concerning  a  supposed  wrong  done  him,  and  if  so,  it 
was  privileged ;  that  making  the  complaint  in  a  loud  voice, 
and  in  abusive  terms,  outside  of  the  plaintiff's  shop  or  in 
the  presence  of  third  parties,  were  circumstances  from 
which  the  jury  might  infer  malice ;  and  if  the  statement 
was  made  maliciously,  it  was  not  privileged.2 

§  242.  When  once  a  confidential  relation  is  established 
between  two  persons  with  regard  to  an  inquiry  of  a  pri- 
vate nature,  whatever  takes  place  between  them  relative 
to  the  same  subject,  though  at  a  time  and  place  different 
from  those  at  which  the  confidential  relation  began,  may 
be  entitled  to  protection  as  well  as  what  passed  at  the 

See  §  399,  post.  There  are  in  Scotland  many  reported  cases  of  the  recovery  of 
damages  against  ministers  of  the  Gospel,  for  words  spoken  in  the  pulpit. ,  See  2 
Shaw's  Digest,  1613,  tit.  Reparation. 

1  Crisp  v.  Gill,  29  Law  Times,  82. 

1  Oddy  v.  Paulet,  4  Fost.  &  F.  1009. 


§  243.]         ESTFORMATIOX  OR  ADVICE  GENERALLY.  415 

original  interview;  and  it  is  a  question  for  the  jury 
whether  any  future  communication  on  the  same  subject, 
though  apparently  casual  and  voluntary,  did  not  take  place 
under  the  influence  of  the  confidential  relation  already 
established  between  the  parties,  and  therefore  entitled  to 
the  same  protection.1 

§  243.  Where  a  publication  would  be  privileged  if 
made,  and  because  made  to  some  certain  person,  the  priv- 
ilege may  be  forfeited  by  the  publication  being  made  to 
some  other  person ;  as  where  C.  was  employed,  for  com- 
pensation, by  certain  merchants  in  New  York,  in  obtaining 
information  cancernino;  the  business  character  and  stand- 
ing  of  their  customers,  and  others  in  other  -States,  doing 
business  in  New  York.  He  wrote  for  their  use,  from  the 
residence  of  T.  &  Co.,  a  letter  unfavorably  representing 
them,  and  on  his  return  had  it  and  similar  letters  printed 
in  a  panrphlet,  which  he  gave  privately  to  his  employers 
and  others,  some  of  whom  had  dealt  with  T.  <fc  Co.  Held, 
that  although  the  publication  might  have  been  privileged 
if  made  only  to  such  of  his  employers  as  were  interested 
in  the  pecuniary  standing  of  T.  &  Co.,  the  privilege  was 
lost  by  the  publication  being  made  to  other  persons.2  And 
so  held  of  a  circular  letter  sent  by  the  secretary  of  a  soci- 
ety for  the  protection  of  trade  to  the  members  of  such  so- 
ciety.3   With  regard  to  the  report  by  the  officers  of  a  cor- 

1  Beatson  v.  Skene,  5  Hurl.  &  X.  838.     See  ante,  note  2,  p.  386. 

2  Taylor  v.  Church,  1  E.  D.  Smith,  279 ;  8  N.  Y.  452;  Cook  v.  Hill,  3  Sandf.  341. 

3  Getting  v.  Foss,  3  Car.  &  P.  160.  Where  the  defendant  kept  a  mercantile  agency 
whose  business  it  was  to  obtain  information  respecting  the  credit  and  responsibility 
of  persons  in  business,  and  to  furnish  the  same  to  subscribers  to  his  agency,  it  was 
held  that  a  communication  made  in  good  faith  to  r*  subscriber  to  such  agency,  was  priv- 
ileged. "The  business  in  which  the  defendant  was  engaged  is  sanctioned  by  the 
usages  of  commercial  communities."  (Ormsby  v.  Douglass,  37  N.  Y.  4(7.)  In  Sher- 
wood v.  Gilbert  (2  Albany  Law  Jour.  323)  it  was  ruled  at  the  circuit  tliat  the  privilege 
accorded  to  a  mercantile  agency,  as  laid  down  in  Ormsby  v.  Douglass,  does  not  ex- 
tend to  the  country  correspondents  of  the  agency.  In  Beardslcy  ".  Tappan,  5  Blatch. 
C.  C.  497,  it  was  held  that  a  communication  by  the  proprietor  of  a  mercantile  agency, 
through  his  clerks,  to  his  customers  and  their  clerks,  was  not  privileged.     In  that  case 


416  DEFENSES.  [Ch.  IX. 

poration  to  tlie  stockholders,  of  the  result  of  their  investi- 
gation into  the  conduct  of  their  officers  and  agents,  with 
their  conclusions  upon  the  evidence  collected  by  them,  it 
was  held  to  be  a  privileged  communication,  but  that  the 
privilege  extended  only  to  making  the  report,  and  not  to 
the  preservation  of  it  in  the  form  of  a  book  for  distribu- 
tion among  the  stockholders  and  in  the  community.1     And 
where  the  defendant  published  an  advertisement  calling  a 
meeting  of  the  creditors  of  the  plaintiff,  and  in  addition 
defamatory  remarks  concerning  the  plaintiff,  the  publica- 
tion was  held  not  to  be  privileged,  because  the  meeting  of 
creditors  might  have  been  called  in  a  less  public  manner.2 
Where  the  plaintiffs  were  contractors  for  the  erection  of  a 
borough  jail,  and  the  defendants  were  members  of  the  town 
council.     The  defendants,  from  their  business,  were  com- 
petent judges  of  the  work,  and  they  published,  in  a  local 
newspaper,  a  letter  charging  the  plaintiff  with  omissions 
and  deviations  from  their  contract.     In  an  action  for  libel, 
it  was  held  that  although  the  charges  contained  in  the  let- 
ter  would  have  been  privileged  if  made  by  the  defendants 
to  the  town  council,  they  were  not  privileged  when  pub- 
lished in  a  newspaper.3     And  although  a  bank  director 
may  be  privileged  at  a  meeting  of  the  board  to  speak  of 
the  credit  of  a  merchant  or  customer  of  his  bank,  he  is  not 
privileged  so  to  speak,  even  to  a  co-director,  in  any  other 


the  plaintiff  had  a  verdict  for  $10,00Q.  A  motion  for  a  new  trial  was  made  before 
Justice  Nelson,  and  denied.  The  defendant  appealed  to  the  United  States  Supreme 
Court,  where  the  judgment  was,  December,  1870,  reversed  on  a  collateral  point. 

In  the  defendant's  brief  in  Tappan  v.  Beardsley,  it  was  said  that  only  thir- 
teen suits  and  one  prosecution  against  mercantile  agencies  for  libel  had  been  insti- 
tuted up  to  that  time,  A.  D.  1870,  and  of  these,  the  prosecution  and  two  suits  were 
then  pending,  and  the  residue  of  the  suits  were  either  abandoned  or  had  resulted  in 
favor  of  the  defendants.  Billings  v.  Eussell,  8  Boston  Law  Rep.  N.  S.  699  (A.  D. 
1851),  was  the  first  reported  case  for  libel  against  a  mercantile  agency. 

J  Phil.  &  R.  R.  Co.  v.  Quigley,  21  How.  U.  S.  Rep.  202.  See  Koenig  v.  Ritchie,  3 
Fost.  &  F.  413. 

9  Brown  v.  Croome,  2  Stark  Cas.  297. 

8  Simpson  v.  Downs,  16  Law  Times,  N.  S.  391. 


§  243.]  INFORMATION    OH    ADVICE    GEIN"ERALLY.  417 

place  or  at  any  other  time  than  at  such  meeting  during  its 
session.1  The  publication,  by  the  directors  of  an  incorpo- 
rated society  for  promoting  female  medical  education,  in 
their  annual  report,  of  a  "  caution  to  the  public  "  against 
trusting  a  person  who  had  formerly  been  employed  to  ob- 
tain and  collect  subscriptions  in  their  behalf,  but  had  since 
been  dismissed,  was  held  to  be  justified  so  far  only  as  it 
was  made  in  good  faith,  and  was  required  to  protect  the 
corporation  and  the  public  against  false  representations  of 
that  person ;  and  that  the  questions,  whether  the  directors 
had  acted  in  good  faith,  and  had  not  exceeded  their  priv- 
ilege, were  for  the  jury.2  The  plaintiff,  having  the  defend- 
ant's bond,  advertised  it  for  sale ;  the  defendant  published 
a  statement  of  the*  circumstances  under  which  the  bond 
had. been  given,  with  this  conclusion:  "His  (plaintiff's) 
object  is  either  to  extract  money  from  the  pockets  of  an 
unwary  purchaser,  or,  what  is  more  likely,  to  extort  money 
from  me;"  held  not  privileged.3  A.  understanding  that 
B.  imputed  to  C,  a  relative  of  A.'s,  the  passing  to  him  of 
a  piece  of  forged  paper,  told  B.,  untruly,  that  he  was  au- 
thorized by  C.  to  call  upon  him  and  investigate  the  mat- 
ter, and  B.  thereupon  repeatedly  asserted  C.'s  guilt  of  the 
crime;  held,  that  these  assertions  were  unnecessaiy  and 
useless,  and  were  not  privileged,  and  it  seems  they  would 
not  have  been  privileged  if  A.  had  been  C.'s  agent  to  call 
upon  B.  for  information.4 


1  Sewell  v.  Catlin,  3  Wend.  291. 

'  Gassett  v.  Gilbert,  6  Gray  (Mas9.)  94. 

3  Robertson  v.  McDougall,  4  Bing.  670 ;  1  Mo.  &  R  692 ;  3  Car.  &  P.  259. 

4  Thorn  v.  Moser,  1  Denio,  488.  The  defendant  had  suspected,  and  declared  his 
suspicion,  that  a  person's  wife  had  committed  larceny  ;  but  upon  being  inquired  of  by 
that  person,  whether  his  suspicions  continued,  replied  that  he  was  now  satisfied  that 
A.  B.  (a  hired  maid)  stole  it.  Held  that  if  the  communication  was  privileged  at  all, 
the  defamatory  matter,  going  further  than  to  satisfy  the  inquirer  that  there  was  rea- 
son for  the  suspicion  to  cease,  went  beyond  the  exigency  of  the  occasion.  (Robinett 
v.  Ruby,  13  Md.  95.)    A.  on  an  occasion  when  no  third  person  was  present,  accused 


418  DEFENSES.  [Ch.  IX 

§  244.  There  are,  however,  some  cases  where  the  pub- 
lication to  others  than  those  immediately  interested  or  con- 
cerned does  not  forfeit  the  privilege ;  as  where  the  plain- 
tiff, a  female,  went  to  the  store  of  the  defendant  to  make 
a  purchase,  and  after  she  left,  the  shopman,  missing  a  roll 
of  ribbon,  supposed  she  had  taken  it,  and  so  informed  his 
employer,  the  defendant ;  the  following  day  the  plaintiff 
was  passing  the  defendant's  store;  the  defendant  seeing 
her,  called  her  in,  and  taxed  her  with  the  theft,  which  the 
plaintiff  denying,  the  defendant  detained  her  and  sent  for 
her  father,  and  in  his  presence  charged  the  plaintiff  with 
stealing  the  ribbon;  after  some  altercation  the  plaintiff 
was  permitted  to  depart,  and  afterwards  brought  an  action 
for  slander,  in  which  action  it  was  held  at  nisi  prius  that 
the  repetition  of  the  charge  to  the  plaintiff's  father  wasr 
under  the  circumstances,  a  privileged  publication.1  And 
where,  in  an  action  for  slander,  it  appeared  that  the  defend- 
ant, in  the  presence  of  a  third  person,  not  an  officer  of 


B.  of  stealing;  afterwards  a  friend  of  B.'s  called  on  A.  and  asked  him  if  he  had  made 
such  an  accusation  ?  A.  answered  "  Yes,  and  I  believe  it  to  be  true."  Held  not 
privileged  (Fores  v.  "Warren,  15  Com.  B.  N.  S.  S06;  and  see  Smith  v.  Matthews,  1 
Moo.  &  Rob.  151 ;  Griffith  w.  Lewis,  7  Q.  B.  61 ;  14  Law  Jour.  197  Q.  B.)  Where  the 
plaintiff,  a  carpenter,  was  employed  by  a  builder,  and  defendant  imputed  that  plain- 
tiff had,  while  so  employed  at  one  Burton's  house,  carried  away  some  quartering*,  the 
builder  afterwards  went  to  defendant  and  asked  him  did  he  say  so  ?  to  which  defend- 
ant replied,  "Yes,  I  saw  the  man  employed  by  you  take  from  Burton's  house  two 
iona;  pieces  of  quartering."  Held  proper  to  instruct  the  jury  that  the  words  were 
privileged  unless  spoken  maliciously.  (Kine  v.  Sewell,  3  M.  &  W.  297.)  If  one 
merely  acknowledges  to  having  made  a  statement  concerning  the  plaintiff,  such 
acknowledgment  alone  will  not  sustain  an  action,  but  it  may  be  used  as  evidence  of 
such  former  statement. 

1  Fowler  v.  Homer,  3  Camp.  294,  and  ante  note  2,  p.  392 ;  also  Toogood  v.  Spyring, 
1  Cr.  M.  <fc  R.  181 ;  4  Tyrw.  5S2;  Manby  v.  With,  18  C.  B.  544  ;  Taylor  v.  Hawkins^ 
16  Q.  B.  308.  Words  spoken  by  the  defendant,  which  relate  to  a  subject-matter  in 
which  he  is  immediately  interested,  and  are  said  for  the  purpose  of  protecting  his 
own  interest  and  in  the  full  be'ief  that  they  are  true,  are  privileged  communications, 
though  made  in  the  presence  of  others  than  the  parties  immediately  interested ;  and 
it  is  incumbent  on  the  plaintiff  to  show  malice,  in  fact,  in  order  to  recover.  (Brow  t>. 
Hathaway,  13  Allen  (Mass.)  239;  see  Sneed  v.  Davis,  Law  Rep.  V,  Q.  B.  608.) 


§  244«.]       INFORMATION    OR   ADVICE   GENERALLY.  419 

justice,  charged  the  plaintiff  with  having  stolen  his  prop- 
erty, and  afterward  repeated  the  charge  to  another  person, 
also  not  an  officer,  who  was,  with  the  consent  of  the  plain- 
tiff, called  in  to  search  him,  held  the  charge  was  privileged 
if  the  defendant  believed  in  its  truth,  acted  bona  fide,  and 
did  not  make  the  charge  before  more  persons  or  in  stronger 
language  than  was  necessary.1 

§  244$.  "When  words  imputing  misconduct  of  which 
two  persons  are  alleged  to  have  been  jointly  guilty,  are 
spoken  to  one  of  them  under  circumstances  which  made 
the  communication  privileged  as  to  him,  the  statement  is 
privileged  as  to  the  other  also,  and  the  latter  cannot  main- 
tain an  action  in  respect  of  such  statement ';"  thus  where  it 
appeared  that  one  Sneed,  the  plaintiff,  was  an  attorney  and 
the  legal  adviser  of  the  Bev.  H.  H.,  who  was  trustee  for 
one  widow  D.  and  her  children,  and  also  rector  of  the  par- 
ish in  which  defendant  resided.  During  a  visit  H.  H.  paid 
to  defendant,  in  the  course  of  conversation  and  in  the  pres- 
ence of  other  persons  than  H.  H.  and  defendant,  the  de- 
fendant stated  to  H.  H.,  "  Your  name  is  pretty  well  up  in 
the  town  of  Brecon.  You  and  your  scoundrel  solicitor's 
names  are  ringing  through  the  shops  and  streets  of  Brecon. 
You  are  spoken  of  as  robbing  the  widow  and  orphans — 
you  to  build  your  church  and  he  to  marry  his  daughter." 
In  an  action  by  Snead,  the  court  charged  the  jury  that  if 
there  was  express  malice  the  action  would  lie,  otherwise 
they  might  consider  the  communication  privileged,  pro- 
vided that  they  were  of  opinion  that  the  defendant  was 
bona  fide  telling  H.  H.  facts  important  for  him  to  know,  in 


1  Padmore  v.  Lawrence,  11  Ad.  &  El.  380;  3  Per.  &  D.  209.  The  plaintiff  was 
the  matron  of  a  charitable  institution;  a  charge  being  made  against  her,  the  defend- 
ant, the  secretary  of  the  institution,  was  appointed  to  investigate  the  truth  of  such 
charges  In  the  course  of  such  investigation,  the  defendant,  in  the  presence  of  third 
parties,  inmates  of  the  institution,  made  defamatory  statements  concerning  the  plain- 
tiff.    Held  to  be  conditionally  privileged  (Walluce  v.  Carroll,  11  Ir.  L.  R.  N.  S.  485). 


420  DEFENSES.  [Ch.  IX. 

order  to  clear  his  character.  The  jury  negatived  malice- 
A  verdict  was  entered  for  plaintiff,  with  liberty  to  move 
to  enter  it  for  defendant.  The  court  in  banc  held  that,  as 
the  statement  referred  to  both  plaintiff  and  H.  H.  in  such 
a  manner  as  to  be  indivisible,  and  the  part  relating  to  H. 
H.  could  not  be  repeated  to  him  without  including  the 
part  affecting  the  plaintiff,  the  jury  having  negatived 
malice,  the  statement  was  privileged,  and  the  verdict  was 
ordered  for  the  defendant.1 

§  245.  There  is  a  well  recognized  right  to  what  is 
termed  "  give  a  character  to  a  servant."  This  right  may 
be  thus  described:  An  ex  employer  may,  without  render- 
ing himself  liable  in  an  action  for  slander  or  libel,  in  good 
faith,  state  orally  or  in  writing,  and  as  well  without  as 
with  a  previous  request,  all  that  he  may  believe  to  be  true 
concerning  his  ex-employee.  It  appearing  that  the  publi- 
cation was  made  in  what  is  termed  "  giving  a  character," 
the  presumption  is  that  it  is  made  bona  fide,  and  the  bur- 
den is  upon  the  plaintiff  to  show  malice  in  the  publisher, 
i.  e.,  either  that  he  had  an  intent  to  injure  the  person  spoken 
of,  or  that  he  did  not  believe  in  the  truth  of  the  statement 
published.  Where  no  intent  to  injure  exists,  a  belief  in 
the  truth  of  the  language  published  is  a  legal  excuse  for 
making  the  publication;  but  where  an  intent  to  injure 
exists,  a  belief  in  the  truth  of  the  language  published  is 
not  a  legal  excuse  for  making  the  publication.  |  Malice,  or ) 
a  want  of  good  faith,  is  established  when  it  is  shown  that 
the  matter  published  was  false  within  the  knowledge  of 
the  publisher ;  or  malice  may  be  established  by  showing 
a  bad  motive  in  making  the  publication ;  as  that  it  was 
made  more  publicly  than  was  necessary  to  protect  the 
interests  of  the  parties  concerned,  or  that  it  contained 


1  Davies  v.  Snead,  Law  Rep.  V,  Q.  B.  608;  and  see  Brow  v.  Hathaway,  13  Allen 
(Mass.),  239. 


§  245.]  MASTER   AND    SERVANT.  421 

matter  not  relevant  to  the  occasion,  or  that  the  publisher 
entertained  ill-will  toward  the  person  whom  the  publica- 
tion concerned.  Although  the  right  now  under  considera- 
tion is  one  exercised  in  connection  with  the  relation  of 
master  and  servant,  it  does  not,  at  least  in  the  manner 
generally  supposed,  arise  out  of  that  relation,  nor  is  the 
right  restricted  within  the  limits  ordinarily  assigned  to  it. 
The  relation  of  master  and  servant,  or  of  employer  and 
employee,  is  one  created  by  contract ;  with  the  determi- 
nation of  the  contract  the  relation  expires,  and  at  the 
expiration  of  the  relation  ceases  all  the  rights  and  duties 
which,  during  its  continuance,  existed  between  the  parties. 
Thenceforth  the  parties  occupy  the  same  relative  positions 
as  if  no  contract  of  hiring  and  serving  had  ever  been 
made.  It  cannot  be  that  because  A.  has-  been  in  B.'s 
employ,  B.  thereby  acquires  a  right  to  publish  concerning 
A.  anything  he  would  not  have  been  permitted  with  im- 
punity to  publish  had  such  relation  never  existed.  Hence 
the  right  now  in  review  must  rest  on  some  other  founda- 
tion, or  arise  in  some  other  way,  than  out  of  the  mere  fact 
that  the  person  spoken  or  written  of  has  been  in  the  em- 
ploy of  the  publisher.1  On  examination,  it  will  be  per- 
ceived that  this  right  of  an  ex  employer  to  give,  as  it '  is 
termed,  a  character  to  his  ex-employee,  is  nothing  more 
than  a  consequence  of  the  right  to  communicate  one's 
belief,  which  is  referred  to  and  illustrated  in  a  preceding 
section  (§  241).  An  employer  is  charged  with  the  duty 
of  exercising  due  care  in  the  selection  and  retention  of 
properly  qualified   employees  or  agents,  and  is  liable  for 


1  That  seems  a  monstrous  proposition  of  Sir  T.  Wilde's  in  the  argument  of  Coxhcad 
v.  Richards  (see  ante,  note,  p.  407),  that  "the  servant  authorizes  the  master  to  libel  him," 
and  jet  perhaps  it  is  warranted  by  the  reasoning  in  many  decisions,  and  it  is  the  only 
assumption  for  basing  a  distinction  between  the  case  of  an  ex-employer  speaking  of 
his  ex-employee  and  the  case  of  any  other  person  (one  not  an  employer)  makin"-  a 
communication  to  a  party  interested. 


422  DEFENSES.  [Ch.  IX. 

all  the  acts  of  Iris  employees  done  in  his  service.1  In 
addition,  the  employer  has  more  or  less  to  trust  the  safety 
of  his  person  and  his  property  to  the  employee ;  the  em- 
ployer, therefore,  is  peculiarly  interested  to  know  the 
character  and  capacity  of  every  person  who  either  is 
already  in  his  employ,  or  is  desirous  of  entering  his  em- 
ploy. The  employer  can  obtain  this  knowledge  only  from 
the  employee  himself,  or  from  information  furnished  by 
those  to  whom  the  employee  may  be  known.  To  limit 
the  source  of  this  knowledge  to  the  employee  himself, 
would  manifestly,  in  the  majority  of  cases,  operate  to  pre- 
vent the  obtaining  any  information  worth  the  having; 
but  because  the  employer  is  interested  in  knowing  the 
character  and  capacity  of  those  in  his  employ,  or  who  are 
candidates  for  employment  by  him,  not  a  former  employer 
only,  but  every  one  who  honestly  believes  himself  pos- 
sessed of  knowledge  on  the  subject  which  the  employer 
is  interested  to  know,  may,  with  or  without  a  previous 
request,  in  good  faith,  communicate  such  his  belief  to  the 
employer.  In  such  cases,  the  communication  is  made  not 
to  promote  the  interest  of  the  person  making  it,  but  either 
to  serve  the  interests  of  the  employer,  or  to  injure  the 
employee.  No  one  is  under  any  obligation  to  make  such 
a  communication ;  he  does  not  owe  it  as  a  duty,  either  to 
the  employer  or  the  employee,  to  make  any  communication 
on  the  subject.  Making  the  communication  is  the  exercise 
of  a  right,  and  is  optional  (§  39).  This  right  is  exercised 
under  the  double  peril  that  by  speaking  disparagingly  of 
the  employee,  the  speaker  may  be  sued  by  the  employee 
for  slander,  and  by  speaking  approvingly  of  the  employee 
he  may  be  sued  by  the  employer  for  misrepresentation.2 


1  This  does  not  mean  while  in  the  employer's  service,  but  done  in  the  execution  of 
his  proper  duties  as  such  employee.     (See  ante,  note  p.  156.) 

a  Defendant's  letter  of  recommendation  of  the  plaintiff,  if  untrue,  would  have  ren- 


§  245.]  MASTER    AND    SERVANT.  423 

Hence  usually  this  right  is  exercised  with  reluctance ;  and 
as,  where  the  communication  is  made  without  request,  less 
evidence  of  ill-will  may  be  required  than  in  the  case  of  a 
communication  made  upon  a  request,1  it  seldom  happens 
that  such  communications  are  made  without  request ;  and 
because  the  character  and  capacity  of  an  employee  will  be 
by  no  one  so  well  known  as  by  the  one  in  whose  service 
he  has  been,  it  happens  the  ex-employer  is  the  person  to 
whom,  in  the  majority  of  instances,  application  will  be 
made  for  information  respecting  the  character  and  capacity 
of  a  candidate  for  employment,  not  because  the  ex-employer 
is  the  only  person  having  the  right  to  give  information, 
but  because  he  is  supposed  to  be  better  qualified  than  any 
other  to  give  information  on  the  subject.1  The  exercise  of 
this  right  should  be  encouraged,  not  only  for  the  benefit 
of  the  employer,  but  of  the  employee;  if  the  ex-employer 
refuses,  as  he  lawfully  may,2  to  answer  any  inquiries 
respecting  his  ex-employee,  the  probable  inference  is  that 
he  can  say  nothing  favorable,  and  will  not  incur  the  risk 
of  saying  anything  unfavorable — an  inference  which  may 
be  unjust  to  the  ex-employee.  These  views  have  been 
expressed  judicially,  as  thus:  "But  the  rule  is  general, 
and  it  seems  to  me  to  be  quite  a  mistake  to  suppose  that 
it  is  the  privilege  only  of  persons  giving  characters.  There 
are  two  other  classes  of  persons  materially  interested  in 
the  maintenance  of  the  privilege — the  persons  accepting 
characters,  and  those  of  whom  characters  are  given.  It  is 
a  most  important  privilege  for  the  encouragement  of  all 


dered  him  liable  to  any  one  injured  thereby.     (Fowles  v.  Bowen,  30  N.  Y.  20;    and 
see  Pasley  v.  Freeman,  3  Term  R.  51.) 

1  "  At  all  events,  when  he  volunteers  to  give  the  character,  stronger  evidence  will 
be  required  that  he  acted  bona  fide,  than  in  the  case  where  he  has  given  the  charac- 
ter after  being  required  so  to  do."  (Littledale,  J.,  Pattidon  v.  Jones,  8  Barn.  &  C. 
578.) 

3  No  action  lies  for  refusing  to  give  information  as  to  the  character  or  capacity  of 
a  former  employee.     (Carrol  v.  Bird,  3  Esp.  204.) 


424  DEFENSES.  [Ch.   IX. 

honest  servants.  They  are  sufficiently  protected  against 
the  abuse  of  it  by  that  limitation  of  it  to  which  all 
agree — that  if  a  master,  goiug  beyond  it,  wantonly  and 
maliciously  makes  a  false  statement  as  to  the  character  of 
his  servant,  the  express  malice  takes  away  all  the  privi- 
lege." * 

§  246.  The  subject  of  the  preceding  section  (§  245)  is 
illustrated  by  the  decisions  to  which  we  proceed  to  refer. 
Thus,  it  is  said,2  a  bona  fide  character  given  of  a  servant 
that  she  was  saucy,  &c,  if  there  be  no  malice  (which 
must  be  directly  proved),  will  not  ground  an  action  of 
slander,  though  the  servant  was  prevented  from  getting  a 
place  thereby ;  and,  though  a  letter  giving  a  false  charac- 
ter of  a  servant  may  be  the  ground  of  an  action,  yet,  if 
written  as  an  answer  to  a  letter  sent,  not  with  a  view  to 
obtaining  a  character,  but  with  an  intention  of  obtaining 
such  an  answer  as  should  be  the  ground  of  an  action,  no 
action  can  be  sustained.3  A  servant  cannot  maintain  an 
action  against  his  former  master  for  words  spoken  or  a 
letter  written  by  him  in  giving  a  character  of  the  servant, 
unless  the  latter  prove  the  malice  as  well  as  falsehood  of 
the  charge,  even  though  the  master  make  specific  charges 
of  fraud.  As  where  the  plaintiff,  who  had  been  in  the 
employ  of  the  defendant,  afterwards  applied  to  one  R.  for 
employment.  K.  inquired  of  the  defendant  concerning 
plaintiff,  and  in  consequence  of  what  was  told  him  by 
defendant,  refused  to  employ  plaintiff.  Upon  this,  C, 
plaintiff's  brother-in-law,  called  upon  the  defendant  for  an 
explanation,  and  then  the  defendant  wrote  C,  "  Two  days 
I  gave  him  (plaintiff)  money  to  go  into  the  city  and  buy 


1  Wightman,  J.,  Gardner  v.  Slade,  13  Jurist,  828 ;    13  Adol.  <fe  El.  N.  S.  796;    and 
see  in  note,  p.  427,  post,  and  Swadling  v.  Tarpley,  in  Appendix,  post. 
8  Edmonson  v.  Stephenson,  Bull.  N.  P.  8. 
3  King  v.  Waring,  5  Esp.  14. 


§  246.]  MASTER   AND     SERVANT.  425 

books.  When  lie  carne  home  I  desired  hiin  to  reckon  up 
his  accounts ;  he  did  so.  But  being  one  day  more  curious 
than  I  sometimes  was,  I  looked  over  his  account,  article 
by  article,  and  in  one  book  I  well  knew  the  price  of,  I 
found  he  had  charged  me  one  shilling  more  than  it  cost, 
and  that  shilling  he  kept  in  his  pocket,"  with  statements 
of  other  frauds ;  on  the  trial  the  plaintiff  had  a  verdict, 
subject  to  the  opinion  of  the  court  on  a  special  case;  upon 
the  argument  of  the  case  judgment  was  ordered  for  the 
defendant.1  Where,  in  an  action  of  slander,  it  appeared 
that  the  plaintiff  had  applied  to  the  under-sheriff  to  be 
appointed  an  officer,  the  latter  applied  to  the  defendant  as 
to  the  fitness  of  plaintiff,  held  that  the  answer  of  the  de- 
fendant was  conditionally  privileged.2  Where  A.  intro- 
duced the  plaintiff  to  defendant,  a  ship's  captain,  who 
employed  plaintiff  as  his  mate,  defendant  afterwards  dis- 
missed plaintiff  from  his  service,  and  wrote  A.  that  he 
had  done  so  on  account  of  the  intemperate  habits  of  the 
plaintiff,  this  was  held  a  privileged  communication.3  The 
defendant  being  about  to  dismiss  the  plaintiff  from  his 
employ,  called  in  a  friend  to  hear  what  passed,  and  hav- 
ing dismissed  the  plaintiff,  refused  to  give  him  a  character, 
alleging  to  those  who  applied  for  information  respecting 
the  plaintiff,  that  he,  defendant,  had  discharged  the  plain- 
tiff for  dishonesty.  The  plaintiff's  brother  afterwards 
inquired  of  the  defendant  why  he  had  treated  the  plaintiff 
in  such  a  manner,  and  that  he  (defendant)  was  keeping 
plaintiff  out  of  employ.  The  defendant  answered,  "He 
has  robbed  me ;  and  I  believe  for  years  past,"  adding  that 

1  Weatherstone  v.  Hawkins,  1  Term  It.  110. 

-  Sims  v.  Kinder,  1  Carr.  279. 

3  Tremaine  v.  Parker,  12  Law  Times,  312.  A  letter  addressed  to  a  person  on 
whose  recommendation  the  writer  had  taken  the  plaintiff  into  hie  service,  to  the 
effect  that  his  (plaintiff's)  conduct  had  not  justified  the  character  given  of  him,  and 
that  he  had  left  a  balance  unaccounted  for,  and  that  lie  ought  not  to  be  recommend- 
ed for  morality  or  honesty;  this  was  held  to  be  privileged.  (Dixon  v.  Parsons,  1 
Fost.  &,  Fin.  24.) 

28 


426  DEFENSES.  [CL  IX. 

he  concluded  so  from  the  circumstances  under  which  he 
had  discharged  the  plaintiff.  Erie,  J.,  said,  "  The  calling 
in  a  witness  was  consistent  with  a  wish  to  spread  defama- 
tion ;  it  was  consistent  also  with  the  wish  to  do  what  a 
prudent  man  would  desire  to  do.  But  if  the  effect  of  the 
evidence  is  equal  both  ways,  the  onus  of  proving  malice 
lies  upon  the  plaintiff.  As  to  the  words  spoken  to  the 
plaintiff's  brother,  no  malicious  motive  appears.  The  evi- 
dence, indeed,  related  to  only  one  robbery,  whereas  the 
defendant  spoke  of  having  been  robbed  for  years.  But 
the  communication  was  made  in  answer  to  an  inquiry  by 
the  plaintiff's  brother,  and  there  are  no  circumstances  to 
show  that  the  extent  of  the  statement  actually  made  pro- 
ceeded from  malice,  or  went  beyond  what  might  be  said 
by  a  person  honestly  wishing  to  tell  the  whole  truth." 1 
The  plaintiff  had  been  in  the  employ  of  the  defendant 
and  dismissed  on  a  charge  of  theft.  Plaintiff  afterwards 
went  to  defendant's  house  to  be  paid  his  wages,  and  was 
in  conversation  with  the  defendant's  servants,  when  the 
defendant,  addressing  his  servants,  said,  "I  discharged 
that  man  (the  plaintiff)  for  robbing  me;  do  not  speak 
any  more  to  him,  in  public  or  private,  or  I  shall  think 
you  as  bad  as  him."  Maule,  J.,  said,  "  The  evidence  does 
not  raise  any  probability  of  malice,  and  is  quite  as  consis- 
tent with  its  absence  as  with  its  presence ;  and  consider- 
ing that  the  mere  possibility  of  malice  which  is  found  in 
this  case,  and  in  all  cases  where  it  is  not  disproved  would 
not  be  sufficient  to  justify  a  finding  for  the  plaintiff,  and 
it  was  right  not  to  leave  the  question  of  malice  to  the 
jury."2  A  defendant  who  had  dismissed  two  servants, 
told  one  in  the  absence*  of  the  other,  You  have  both  been 
robbing    me;     it    was     held     conditionally    privileged.3 

1  Taylor  v.  Hawkins,  16  Q.  B.  308;  20  Law  Jour.  Rep.  N.  S.  313,  Q.  B. ;  15  Jurist, 
'TOB;  and  ante,  §  244. 

2  SomerYille  v.  Hawkins,  10  C.  B.  583;  15  Jurist,  450. 

8Manby  v.  Witt,  and  Eastmead  v.  Witt,  18  C.  B.  544;  25  Law  Jour.  294,  C.  P. 


§  240.]  MASTER   AND    SERVANT.  427 

The  plaintiff  being  in  the  service  of  the  defendant  was 
discharged  without  any  previous  notice,  and  the  plaintiff 
considering  himself  entitled  to  a  month's  wages,  in  lieu  of 
notice,  refused  to  quit  the  defendant's  house  until  those 
wages  were  paid  him,  whereupon  the  defendant  had  the 
plaintiff  removed  by  a  police  officer.  The  defendant 
called  on  one  Holland,  in  whose  employ  the  plaintiff  had 
previously  been,  and  complained  of  plaintiff,  requesting 
Mr.  Holland  not  to  give  plaintiff  another  character.  Sub- 
sequently, the  plaintiff  applied  to  Mr.  Hand  for  employ- 
ment, who  inquired  of  defendant  and  received  from  him  a 
letter,  the  material  portion  of  which  was  as  thus :  "  Rogers 
(the  plaintiff)  did  not  live  with  me  six  months,  as  he  has 
told  you,  and  I  wish  I  had  never  taken  him  into  my  house, 
as  he  is  a  bad-tempered,  lazy,  impertinent  fellow,  and  has 
given  me  a  great  deal  of  trouble.  I  was  obliged  to  send 
for  a  police  officer  to  put  him  and  his  things  out  of  my 
house ;  as  I  look  upon  it  he  will  take  any  advantage  he 
can."  On  the  trial  the  court  left  it  to  the  jury  to  say  if 
the  defendant  had  acted  maliciously ;  the  verdict  was  for 
the  plaintiff:  leave  was  reserved  to  the  defendant  to  move 
to  enter  a  non-suit.  He  moved,  but  his  motion  was  re- 
fused.1    Where  defendant,  plaintiff's  former  mistress,  in  a 


1  Rogers  v.  Clifton,  3  B.  &  P.  587,  on  the  motion  for  a  non-suit,  Lord  Alvauley, 
Ch.  J.,  said,  "  If  it  were  to  be  understood  that  whenever  a  master  gives  a  had  charac- 
ter to  a  servant  who  has  quitted  his  service,  he  may  be  forced  by  the  servant,  in  jus- 
tification, to  prove  the  truth  of  what  he  has  stated,  it  would  be  impossible  for  any 
master  (so  understanding  the  law,  at  least  with  any  regard  to  his  own  safety)  to  give 
any  character  but  the  most  favorable  to  a  servant,  and  consequently  impossible  for  a 
servant  not  entitled  to  the.  most  favorable  character,  to  obtain  any  new  place.  Unques- 
tionably the  master  is  not  bound  to  substantiate  the  truth  of  what  he  says  in  giving 
a  character  to  his  late  servant,  but  it  is  equally  clear  that  the  servant  may,  if  he  can 
prove  the  character  to  be  false,  and  the  question  between  the  master  and  servant  will 
always,  in  such  a  case,  be,  whether  what  the  former  has  spoken  concerning  the  latter 
be  malicious  and  defamatory;"  and  per  Rooke,  J.,  "a  master  may,  at  any  time, 
whether  asked  or  not,  speak  of  the  character  of  his  servant,  provided  that  he  speak  in 
the  honesty  of  his  heart,  and  an  action  cannot  be  maintained  against  him  for  so  doing; 
at  the  same  time,  masters  are  not  warranted  in  speaking  ill  of  their  servants  from 
heat  and  passion."  Where  the  plaintiff  charged  his  servant  with  robbing  him,  and 
the  robbery  charged  consisted  in  giving  away  pieces  of  bread,  the  court  charged  the 


428  DEFEASES.  [Ch.  IX. 

letter  answering  inquiries  as  to  plaintiff's  character,  stated 
acts  of  misconduct  during  the  time  of  plaintiff's  being 
in  her  service,  and  also  subsequently  to  her  having  left  it, 
and  defendant  had  also  stated  the  same  to  the  persons 
who  originally  recommended  plaintiff  to  her ;  held,  that 
the  latter  part  of  the  letter  was  a  privileged  commu- 
nication, and  which  the  defendant  was  bound  to  make, 
and  that  the  oral  statement  having  been  made  only  to  the 
persons  who  recommended  plaintiff,  was  not  officious  nor 
evidence  of  malice,  which  in  such  an  action  is  the  gist, 
and  must  be  expressly  proved.1  In  an  action  for  slander 
of  the  plaintiff,  in  her  character  of  a  domestic  servant,  the 
plaintiff  proved  that,  having  lived  some  time  with  the  de- 
fendant, she  changed  service  upon  a  character  given  to 
her  by  the  defendant;  that,  some  time  afterwards,  the 
defendant's  wife,  in  a  letter  to  her  new  mistress,  alluded 
to  the  plaintiff,  and  to  the  character  first  given  of  her  as 
being  unmerited;  that  thereupon  the  new  mistress  re- 
quested further  information,  and  was  told  by  the  defend- 
ant's wife  that  she  had  discovered,  since  the  time  of  the 
giving  of  the  first  character,  that  the  plaintiff  was  dishon- 
est. Held,  that  there  was  no  evidence  to  be  submitted  to 
the  jury  of  malice  in  the  defendant's  wife,  and  that  the 
communication  was  privileged.  If  a  servant  obtain  a 
place  upon  the  strength  of  a  character  given  by  his  master, 
and  the  master  afterwards  discover  circumstances  which 
induce  him  to  believe  that  the  character  was  undeserved, 
he  is  morally  bound  to  inform  the  new  master  of  those  cir- 
cumstances, and  the  communication  made  concerning  them 
is  a  privileged  communication.3    The  plaintiff  had  been  in 

jury  that  if  the  pieces  of  bread  given  away  were  such  pieces  as  the  servant  might 
reason  ablj-  suppose  the  master  would  not  object  to  his  giving  away,  the  master  was 
not  justified  in  the  charge  of  robbery,  and  the  servant  might  recover.  (Roberts  v. 
Richards,  3  Fost.  &  Fin.  507.) 

1  Child  v.  Affleck,  9  B.  &  C.  403. 

2  Gardner  v.  Slade,  13  Jurist,  826;  11  Law  Jour.  Rep.  334,  Q.  B.;  13  Law  Times, 

282. 


§  24G.]  MASTER   AND    SERVANT.  429 

the  employ  of  defendant  and  his  partners;  on  plaintiff 
leaving  their  employ,  defendant  and  his  partners  gave 
him  a  written  recommendation,  and  plaintiff  afterwards 
went  into  the  employ  of  C.  Subsequently,  defendant  saw 
C,  and  said  he  desired  to  set  him  right  in  regard  to  a  young 
man  (the  plaintiff)  in  his  employ,  that  he  was  a  liar,  and 
he  had  doubts  of  his  honesty;  held  a  conditionally  privi- 
leged communication.1  The  letter  of  recommendation,  if 
untrue,  would  have  rendered  him  liable  to  any  one 
injured  thereby,  and  he  was  privileged  to  say  what  he 
did  for  his  own  protection.  Plaintiff  was  in  the  service 
of  the  defendants  (husband  and  wife)  as  governess  for 
fourteen  months.  After  she  left  she  sought  an  engage- 
ment elsewhere,  and  on  an  inquiry  being  made  to  the 
defendant  (the  wife)  concerning  the  plaintiff,  the  defend- 
ant answered  in  writing,  "  I  parted  with  her  (the  plain- 
tiff) on  account  of  her  incompetency  and  not  being 
lady-like  nor  good  tempered,"  adding,  "May  I  trouble 
you  to  tell  her  (the  plaintiff)  that  this  being  the  third 
time  I  have  been  referred  to,  I  beg  to  decline  any  further 
applications."  Evidence  was  given  of  plaintiff's  compe- 
tency and  of  her  being  lady-like  and  good  tempered.  It 
was  left  to  the  jury  to  say  whether  the  letter  was  written 
maliciously,  and  that  stating  what  was  untrue  was  evi- 
dence of  malice.  The  plaintiff  had  a  verdict,  and  the 
court  above  refused  to  disturb  it.2  Where  the  plaintiff's 
master  (the  defendant)  had,  on  his  quitting  his  service, 
and  being  about  to  enter  on  another,  written  of  his  own 
accord  a  letter  informing  the  party  that  he  had  dis- 
charged the  plaintiff  for  misconduct,  and  on  receiving  a 
letter  inquiring  the  particulars,  had  written  the  libellous 
letters  for  which  the  action  was  brought;  held,  that  al- 
though a  party  might  set  himself  in  motion  to  induct 
inquiries  Ly  a  third  party,  and  the  answers,  although  slan-  1 

1  Fowles  v.  Eowen,  30  N.  Y.  20. 

s  Fountain  v.  Boodle,  3  Ad.  &  El.  N.  S.  5;  2  Gale  &  Dav.  455. 


430  DEFENSES.  [CL  IX. 

derous,  miglit  come  within  the  scope  of  a  privileged  com- 
munication ;  yet  in  such  a  case  it  would  be  a  question  for 
the  jury  to  say  if  the  defendant  acted  bona  fide,  or  mali- 
ciously intending  to  do  the  servant  an  injury.1  A.  (plain- 
tiff) having  left  B.'s  (defendant's)  service  at  her  own 
desire,  in  consequence  of  B.'s  accusing  her  of  dishonesty, 
returned  to  B.'s  house  for  her  boxes  and  B.  then  charged 
her  with  theft  and  told  her  that  if  she  had  not  come  back 
he  would  have  said  nothing  about  it ;  upon  A.'s  inform- 
ing B.  that  C.  intended  coining  to  him  for  her  (A.'s)  char- 
acter, defendant  said  he  should  give  A.  no  character 
unless  she  confessed  to  the  alleged  theft.  C.  went  to 
defendant  for  A.'s  character;  defendant  told  C.  that  A. 
was  dishonest.  In  an  action  for  slander,  held,  that  the 
occasion  was  privileged,  but  that  the  statement  of  defend- 
ant to  plaintiff  was  evidence  from  which  malice  might  be 
inferred,  and  that  the  judge  upon  the  trial  did  right  to 
leave  the  question  of  malice  to  the  jury  and  in  asking 
them  the  question  whether  defendant  believed  his  impu- 
tation to  be  true.2  The  plaintiff  was  defendant's  gar- 
dener. The  defendant  having  dismissed  plaintiff  from  his 
service,  wrote  E.,  on  whose  recommendation  defendant 
had  originally  engaged  plaintiff,  stating  inter  alia,  "On 
Saturday  I  had  another  scene  with  F.  (plaintiff)  in  my 
garden.  He  was  extremely  violent,  came  towards  me 
several  times  with  an  open  clasp  knife  in  his  hand  and 
his  eyes  starting  from  their  sockets  with  rage,  a  perfect 
raving  madman.  I  was  fortunately  accompanied  by  my 
upper  servant.  He  accused  me  of  having  opened  a  letter 
of  his.  *  *  *  I  think  it  right  you  should  be  informed 
of  F.'s  (plaintiff's)  violent  conduct  as  you  might  unwit- 
tingly recommend  him  without  being  aware  of  his  temper 
and  faults."  E.  who  was  the  superintendent  of  the  Royal 
Horticultural  Society,  of  which  defendant  was  a  member, 

1  Pattison  v.  Jones,  8  B.  &  C.  5S7;  3  C.  <fc  P.  3S3;  3  M.  &  R.  101. 
3  Jackson  v.  Hopperton,  10  Law  Times,  N.  S.  529. 


§  247.]  CANDIDATE   FOR   OFFICE.  431 

was  in  the  habit  of  recommending  gardeners  to  the  mem- 
bers of  the  society,  and  plaintff  had,  as  defendant  knew  at 
the  time  he  wrote  the  letter,  applied  to  E.  to  procure  him 
another  situation ;  held,  that  the  letter  could  not  be  con- 
sidered as  privileged,  as  there  were  expressions  in  it,  such 
as  plaintiff's  being  a  "raving  madman,"  which  went 
beyond  what  was  justifiable,  although  the  jury  found 
the  communication  was  made  bona  fide  and  without 
malice.1 

§  247.  As  respects  publications  concerning  candidates 
for  office,  we  take  upon  ourselves,  with  due  deference  to 
the  decisions,  to  say,  that  the  same  rule  applies  to  them  as 
to  communications  made  concerning  candidates  for  em- 
ployment  generally  (§  245).  The  rule,  as  we  suppose, 
must  be  the  same  for  every  hind  of  employment,  and  office 
is  only  another  name  for  employment.  The  right  which 
one  has  to  speak  concerning  a  candidate  for  employment 
as  a  mechanic  or  domestic,  is  neither  more  extensive  nor 
more  limited  than  the  right  one  has  to  speak  of  a  candi- 
date for  the  office  of  a  legislator  or  a  judge.  As  respects  a 
candidate  for  employment  generally,  so  with  respect  to  a 
candidate  for  office;  the  publication,  to  be  privileged, 
must,  with  certain  exceptions  (§  244),  be  limited  to  the 
persons  interested.  A  general  publication,  as  well  to 
those  interested  as  to  those  not  interested,  would  not  be 
privileged.  Again,  the  matter  published  must  be  such  as 
is  relevant  to  the  subject-matter,  and  necessary  to  be 
known  by  the  persons  in  interest  for  their  own  protection. 
Thus  the  publication  in  a  newspaper  of  defamatory  matter 
concerning  a  candidate  for  appointment,  was  held  not 
to  be  privileged,  and  that  to  have  been  privileged  the 
publication  should  have  been  limited  to  the  appointing 


1  Fryer  v.  Kinnersley,  15  C.  B.  X.  8.  429;  33  Law  Jour.  90,  C.  P.  In  Cowles  v. 
Potts,  34  Law  Jour.  248,  Q.  B.  by  counsel:  It  is  difficult  to  understand  the  case  of 
Fryer  v.  Kinnersley,  and  by  Blackburn,  J.:  I  do  not  quite  understand  the  ratio  deci- 
dendi of  that  case. 


432  DEFENSES.  [Ch.  IX. 

power  (§  243)  ;*  so  limited  it  would  have  been  privileged; 
as  where  defendant,  at  the  request  of  a  senator  of  the 
United  States,  in  order  to  give  him  information  as  to  the 
fitness  of  the  plaintiff  for  the  office  to  which  he  was  nomi- 
nated, spoke  the  words  charged  in  the  declaration,  and 
referred  to  the  records  of  a  court  for  their  confirmation,  it 
was  held  that  there  wTas  nothing  from  which  to  imply 
malice,  and  that  the  plaintiff  could  not  sustain  his  action.2 
"Where  a  candidate  for  the  representation  of  a  borough 
circulated  an  address  to  the  electors,  asking  for  their 
suffrages,  and  claiming  to  be  a  fit  and  proper  person  to 
represent  them  in  Parliament,  and  an  elector  in  that  bo- 
rough published  in  a  newspaper  two  letters  addressed  to 
the  candidate,  the  first  in  answer  to  the  circular,  and  the 
second  in  consequence  of  the  treatment  he  had  received 
from  the  candidate  on  the  day  of  nomination  at  the  hust- 
ings, and  both  letters  contained  imputations  on  the  pri- 
vate character  of  the  candidate ;  on  the  trial  of  an  action 
for  libel,  the  judge  charged  the  jury  that  the  occasion  did 
not  justify  the  publication,  and  the  plaintiff  had  a  verdict. 
On  a  motion  for  a  new  trial,  it  was  claimed  that  it  was 
justifiable  for  an  elector  bona  fide  to  communicate  to  the 
constituency  any  matter  respecting  a  candidate  which  the 
elector  believed  to  be  true  and  material  to  the  election. 
The  principle  was  conceded  by  the  court  to  be  correct,  but 
was  held  inapplicable  because  the  communication  had  not 
been  confined  to  the  constituency  of  the  plaintiff,  but  had 
been  published  in  a  newspaper!'  "Where  the  plaintiff  was 
a  candidate  at  a  general  election  for  re-election  as  State 


1  Hunt  v.  Bennett,  19  N.  Y.  173,  affirming  4  E.  D.  Smith,  647. 

3  Law  v.  Scott,  5  Har.  &  J.  438.  A  statute  in  Pennsylvania  provides:  Kb  person 
shall  be  subject  to  prosecution  by  indictment  for  investigating  official  conduct  of 
public  officers,  <fcc. 

3  Duncombe  v.  Daniell,  S  C.  &  P.  213;  1  TV.  W.  &  H.  101,  Denman,  C.  J.  How- 
ever large  the  privilege  of  electors  may  be,  it  is  extravagant  to  suppose  that  it  can 
justify  the  publication  to  all  the  world  of  facts  injurious  to  a  person  who  happens  to 
stand  in  the  situation  of  a  candidate. 


§  247.]  CATSTHDATE   FOR   OFFICE  433 

Governor,  the  defendant  published  defamatory  matter  of 
the  plaintiff  in  "  An  address  to  the  electors  of  the  State  of 
New  York ;"  in  an  action  of  libel  for  this  publication,  it 
was  contended  on  the  part  of  the  defendant  that  the 
plaintiff  could  not  recover  unless  upon  proof  of  "  express 
malice."  The  court  denied  this  position,  and  held  that 
malice  was  to  be  implied  from  the  falsity  of  the  publica- 
tion.1 In  an  action  of  slander,  laying  special  damage,  it 
appeared  that  plaintiff,  a  trustee  of  a  charity,  asked  C,  by 
whom  he  was  employed  as  bailiff,  to  obtain  signatures  to 
a  protest  against  his  (plaintiff's)  removal  from  his  office 
of  trustee.  C.  asked  defendant  for  his  signature,  defend- 
ant refused,  and  on  being  pressed  for  his  reasons  for 
refusing,  said  that  he  would  not  keep  a  big  rogue  like 
plaintiff  in  the  trust,  and  he  explained  the  reasons  for  this 
opinion,  which  were  that  plaintiff  had  left  the  parish 
under  discreditable  circumstances  and  without  settling 
with  his  creditors,  including  the  defendant.  He  also 
added  he  was  surprised  C.  employed  such  a  man.  In 
consequence  of  this  statement,  C.  dismissed  plaintiff  from 
his  employ.  The  jury  found  that  defendant  had  not 
acted  with  malice,  held  that  the  words  were  privileged, 


1  Lewis  v.  Few,  5  Johns.  1.  In  Harwood  v.  Astley,  4  Bos.  &  Pul.  47 ;  1  N".  R.  47,  an 
action  for  slander  of  a  candidate  for  election  to  Parliament,  the  plaintiff  succeeded  and 
had  judgment,  which  the  court,  on  writ  of  error,  affirmed  principally,  if  not  solely, 
on  the  ground  that  the  jury  must  have  found  the  publication  to  he  malicious,  and 
therefore,  not  privileged.  Officers  and  candidates  for  offices  may  be  canvassed,  but 
not  calumniated.  (Seely  v.  Blair,  Wright,  358,  683.  See  Brewer  v.  Weakley,  2 
Overt.  99 ;  Root  v.  King,  7  Cow.  613,  affirmed  4  Wend.  113,  note  1  Stark.  Slan.  301.) 
In  Mayrant  v.  Richardson,  1  Xbtt.  &  McC.  327,  an  action  of  slander  against  a  candi- 
date for  office,  it  was  held  by  Nott,  J.,  that  when  a  man  becomes  a  candidate  for 
public  honors,  he  makes  profert  of  himself  for  public  investigation.  No  one  has  tin: 
right  to  impute  to  him  infamous  crimes  or  misdemeanors,  but  talents  and  qualifica- 
tions are  mere  matters  of  opinion,  of  which  the  electors  are  the  only  judges,  and  in 
that  case  it  was  field  that  imputing  weakness  of  understanding  to  a  candidate  for 
Congress  was  not  actionable.  In  Com'wealth  v.  Clapp,  4  Mass.  163,  Parsons,  C  J., 
says:  "  When  a  man  shall  consent  to  be  a  candidate  for  a  public  office,  conferred  by 
the  electors  of  the  people,  he  must  be  considered  as  putting  his  character  in  issue,  so 
far  as  may  respect  his  fitness  and  qualifications  for  office."  But  see  Curtis  v.  Mussey, 
6  Gray,  261;  Aldrich  v.  Press  Print.  Co.,  9  Min.  133. 


434  DEFENSES.  [Ch.  IX. 

and  verdict  entered  for  defendant.1  And  where  the 
plaintiff  was  a  candidate  for  re-election  as  overseer.  At  a 
meeting  to  elect  overseers,  the  defendant  charged  the 
plaintiff  with  having,  while  in  office  as  overseer,  misappro- 
priated  the  parish  funds,  held  that  unless  this  statement 
was  a  malicious  abuse  of  the  occasion,  it  was  privileged.2 

§  248.  Insanity  is  a  complete  defense  to  an  action  for 
slander  or  libel.3  Fools  and  madmen  are  tacitly  excepted 
out  of  all  laws.4  And  Coke  said:  A  madman  is  only 
punished  by  his  madness.  A  judgment  in  an  action  for 
slander  was  perpetually  enjoined,  upon  the  ground  that 
at  the  time  of  the  speaking  the  words,  and  of  the  rendi- 
tion of  the  judgment,  the  defendant  was  insane  in  refer- 
ence to  the  subject  of  the  slander.5 

1  Cowles  v.  Potts,  34  Law  Jour.  247,  Q.  B. 
8  George  v.  Goddard,  2  Fost.  &  F.  689. 

3  Bryant  v.  Jackson,  6  Humpf.  199;  Yeates  v.  Reed,  4  Blackf.  463  ;  Dickinson  v. 
Barber,  9  Mass.  225.  Perhaps  delirium  tremens  is  a  defense;  for  it  is  a  species  of 
insanity,  and  like  insanity  from  other  causes,  affects  the  responsibility  for  crime. 
(Maconnehey  v.  The  State,  5  Ohio,  N.  S.  77;  O'Brien  v.  The  People,  48  Barb.  273.) 
A  lunatic  is  liable  for  a  trespass.  (Weavers.  Ward,  Hob.  134;  Krom  v.  Schoon- 
maker,  3  Barb.  647;  Bullock  v.  Babcock,  3  Wend.  391;  Rae's  Medical  Juri3.  110; 
Mason  v.  Keeling,  12  Mod.  332;  2  Monthly  Law  Reporter,  jS".  S.  487.)  In  the  chapter 
in  the  Roman  Law,  entitled  "  SI  quis  Imperatori  Maledixerit,"  is  a  passage,  which 
being  interpreted,  reads :  "  If  the  evil  speaking  proceed  from  levity,  it  is  to  be 
despised ;  if  from  madness,  it  is  to  be  pitied ;  if  from  a  sense  of  wrong,  it  is  to  be 
forgiven." 

It  is  not  a  defense  to  an  action  of  slander  or  libel,  that  the  words  were  not  spoken 
in  earnest,  but  as  a  jest,  and  that  the  defendant  did  not  expect  to  be  believed.  (Hatch 
v.  Potter,  2  Gilman,  725;  Holt  on  Libel,  290,  291 ;  Long  v.  Eakle,  4  Md.  454;  McKee 
v.  Ingalls,  4  Scam.  30;  Wood's  Civil  Law,  247.;  and  see  Pieter  Tonueman  o.  Jan  de 
Witt,  Valentine's  Corporation  Manual  for  1849,  p.  402;  Addison  on  Contracts,  261.) 
Among  the  Percy  Anecdotes,  Division,  "  The  Bar,"  is  an  anecdote  of  a  suit  for 
slander  brought  by  Serjeant  Maynard,  entitled  "  Golden  Pippins  and  Pig,"  and  in 
which  it  is  stated  the  serjeant  had  a  verdict  in  his  favor,  but  judgment  was  arrested 
jn  consequence  of  the  words  complained  against,"  being  the  burden  of  an  old  story 
which  had  been  applied  to  the  serjeant  in  jest,  and  without  any  intention  to  slander." 
In  Campbell's  Lives  of  the  Lord  Chancellors,  V,  ch.  civ,  p.  31,  this  anecdote  is  related 
more  circumstantially.     See  Donoghue  v.  Haj-es,  Hayes'  Ir.  Ex.  R.  2G5. 

4  Holt,  Ch.  J.,  City  of  London  v.  Vanicker,  Carthew,  483.  "  There  is  no  slander 
in  an  allowed  fool."    (Twelfth  Night,  act  1,  sc.  v.) 

5  Horner  v.  Marshall,  5  Munf.  466. 


§§  249-50.]  DROTCEXXESS,    APOLOGY.  435 

§  249.  Drunkenness  is  not  a  defense  to  an  action  for 
slander  or  libel,1  nor  is  infancy,2  but  drunkenness  may, 
perhaps,  be  a  matter  of  mitigation.3 

§  250.  It  is  a  good  defense  to  an  action  for  libel,  that 
after  the  publication  the  plaintiff  agreed  with  the  defend- 
ant to  accept  the  publication  of  an  apology  in  full  for  his 
cause  of  action,  and  that  such  apology  had  been  pub- 
lished.4 And  it  seems  that  an  agreement  that  the  slan- 
derer  should  write  a  letter  to  a  third  party,  exculpating 
the  person  slandered  from  the  charge,  is  satisfaction  of  the 
injury,  and  his  so  doing  is  evidence  of  an  accord  and  sat- 
isfaction.5    Formerly  a  defense  of  accord  and  satisfaction 

1  McKee  v.  Ingalls,  4  Scam.  30;  Reid  v.  Harper,  25  Iowa,  87.  As  to  defense  of 
intoxication  in  an  action  on  an  express  contract,  see  Gore  v.  Gibson,  13  M.  & 
W.  623. 

8  Defries  v.  Davis,  1  Bing.  N.  C.  692 ;  1  Scott,  594.  An  infant  two  years  old  is 
not  liable  crirninaliter  for  a  nuisance  erected  on  his  lands.  (The  People  v.  Townsend, 
3  Hill,  4*79.)  And  one  aged  only  eleven  years,  seized  of  lands  in  the  usual  occupa- 
tion of  his  guardian  in  socage,  is  not  indictable  for  the  non-repair  of  a  bridge  ratione 
tenure.  (Rex  v.  Sutton,  5  Nev.  <fc  Man.  353.)  See  cases  collected  in  a  note  in  5 
Monthly  Law  Reporter,  N.  S.  364,  Boston,  Nov.  1852. 

'  Howell  v.  Howell,  10  Ired.  84.  And  see  Isley  v.  Lovejoy,  8  Blackf.  402;  Gates 
v.  Meredith,  7  Ind.  440. 

4  Boosey  v.  Wood,  3  Hurl,  it  Colt.  484.  An  agreement  not  to  bring  any  action  in 
consideration  of  the  defendant's  destroying  certain  documents  relating  to  the  charge 
imputed  to  the  plaintiff,  which  the  defendant  accordingly  destroyed,  held  to  be  accord 
and  satisfaction.  (Lane  v.  Applegate,  1  Starkie,  97.)  Where,  in  an  action  of  slander, 
an  agreement  had  been  made,  in  consequence  of  which  the  defendant  signed  a  paper 
stating  that  "  at  his  request  the  plaintiff  had  consented  on  his  paying  the  costs  of  the 
action  as  between  attorney  and  client,  and  making  an  apology  for  his  conduct,  to  stay 
the  proceedingss  therein,"  the  court  held  that  it  was  an  absolute  and  not  a  conditional 
agreement,  and  in  default  of  defendant  paying  the  costs,  made  a  rule  absolute  for 
signing  the  judgment  as  for  want  of  a  plea.  (Yardrew  v.  Brook,  2  Nev.  <fe  M.  835.)  As 
to  the  settlement  of  an  action  for  slander  as  the  consideration  for  a  promise,  see 
O'Kesson  v.  Barclay,  2  Penn.  St.  R.  531;  approved  Morey  v.  Newfane  Township,  8 
Barb.  653;  and  see  Shephard  v.  Watrous,  3  Caines  R  166.  B3^  statute  6  &  7  Vict, 
ch.  96,  it  is  provided  that  in  any  action  for  defamation,  the  defendant,  after  notice, 
may  give  in  evidence,  in  mitigation,  the  making  or  offer  to  make  an  apology. 

•  Smith  v.  Kerr,  1  Barb.  155.  See  Effie  v.  Jacob,  1  Jebb  &  Symes,  257.  An  accord 
and  satisfaction  by  one  or  some  of  several  wrong-doers,  is  a  satisfaction  as  to  all.  (Strang 
v.  Holmes,  7  Cow.  224;  Knickerbacker  v.  Colver;  8  LI.  111.)  It  follows  that  a  partial 
satisfaction,  by  one  of  several  wrong-doers,  is  a  satisfaction  pro  ('into  as  to  all.  (Mer- 
chants' B'k  v.  Curtis,  37  Barb.  320.)     As  to  a  plea  of  apology  and  payment  into  court 


43 G  DEFENSES.  [Ch.  IX. 

did  not  require  to  "be  specially  pleaded.1     Kow  it  must  be 
pleaded  specially. 

§  251.  A  former  recovery  for  the  same  cause  is  a  bar 
to  au  action  for  slander  or  libel.2  A  judgment  in  an 
action  of  slander,  for  a  particular  charge,  bars  any  other 
action  against  the  defendant  in  that  action  for  the  same 
charge,  though  made  on  a  different  occasion,  if  made 
before  suit  brought ;  and,  therefore,  though  there  be  but 
one  count  for  particular  words,  proof  that  they  were 
spoken  by  defendant  on  distinct  occasions  before  suit 
commenced  is  competent.3  It  is  no  bar  to  an  action  for 
slander  or  libel  that  in  a  former  action  for  the  publication 
of  the  same  words,  on  an  occasion  different  from  that 
alleged  in  the  declaration,  the  defendant  obtained  a  ver- 
dict and  judgment  in  his  favor.  It  was  not  for  the  same 
cause  of  action-4  A  recovery  by  the  husband  for  slander- 
ous words  spoken  of  himself  and  wife,  is  not  a  bar  to 
another  action  by  the  wife  for  the  same  slanderous  words, 
in  which  the  husband  is  joined  as  a  nominal  party 
plaintiff.5     A  recoveiy  in  an  action  for  calling  plaintiff  a 


in  England,  see  Stat.  6  &  7  Vict.  ch.  96;  15  &  16  Vict.  ch.  76  ;  Chadwick  v.  Here- 
path,  3  C.  B.  885 ;  O'Brien  v.  Clements,  3  Dowl.  &  L.  676 ;  Lafone  v.  Smith,  3  Hurl.  & 
N.  735  ;  4  Id.  158;  Ingram  v.  Ferguson,  1  New  Pr.  Cas.  486. 

1  2  Greenl.  Ev.  321 ;  Lane  v.  Applegate,  1  Stark.  97;  King  v.  Waring,  5  Esp.  13; 
Eiffe  v.  Jacob,  1  Jebb.  &  S.  257. 

2  Campbell  v.  Butts,  3  N.  Y.  173.  The  plaintiff  having  once  recovered,  cannot 
afterwards  recover  for  any  subsequent  loss  by  the  same  words.  (Bull.  N.  P.  7.) 
Where  the  cause  of  action  is  the  same,  a  judgment  between  the  same  parties  is  bind- 
ing on  each,  and  it  is  immaterial  that  the  form  of  action  is  different,  if  the  cause  of 
action  be  the  same.     (Hitchin  v.  Campbell,  2  W.  Bl.  R.  827.) 

3  Root  v.  Lowndes,  6  Hill,  518. 

4  Henson  v.  Veatch,  1  Blackf.  369. 

5  Bash  v.  Sommer,  20  Penn.  (8  Harris)  159  ;  and  see  ante,  note  3,  p.  153.  A  recovery 
against  one  of  several  parties  to  a  joint  tort  frequently  precludes  the  plaintiff  from 
proceedings  against  any  other  party  not  included  in  such  action.  (Cro.  Jac.  74 ; 
Yelv.  68.)  But  where  the  evidence  and  the  damage  in  the  two  actions  might  be 
different,  as  where  two  persons  on  different  occasions  have  published  the  same  libel, 
separate  actions  may  be  supported  against  each.  (2  B.  <fe  P.  69.)  Where  a  verdict 
with  nominal  damages  (40s.)  had  been  obtained  against  the  publisher  of  a  libel,  that 


§   252.]  FREEDOM   OF   THE   PRESS.  437 

thief,  not  in  the  way  of  his  trade,  held  not  to  be  a  bar  to 
it  subsequent  action  for  words  imputing  to  plaintiff  in  the 
way  of  his  trade  that  he  was  dishonest  and  a  cheat."1  A 
recovery  in  an  action  for  malicious  prosecution  is  a  bar  to 
a  subsequent  action  for  slander,  for  the  accusation  uttered 
for  the  purpose  of  having  the  arrest  made,  and  on  the 
occasion  when  it  was  made.2  But  where  the  defendant 
published  the  accusation  before  or  after  making  his  com- 
plaint to  have  the  plaintiff  arrested,  an  action  for  that 
publication  is  not  barred  by  the  recovery  in  the  action  for 
the  malicious  prosecution.3  An  application  for  a  criminal 
information  against  a  party  for  the  publication  of  a  libel, 
which  application  has  been  refused,  is  no  bar  to  an  action 
on  the  case  for  the  same  ground  of  complaint.4  At  one 
time  the  defense  of  a  former  recovery  might  be  given  in 
evidence  under  the  general  issue ; 5  now,  the  defense  of  a 
former  recovery  must  be  pleaded. 

§  252.  "Whatever  else  may  be  intended  by  the  phrase 
"  freedom  of  the  press,"  or  "  liberty  of  the  press,"  it  means 
the  freedom  or  liberty  of  those  who  conduct  the  press. 
This  freedom  or  liberty,  properly  understood,  means  only 
that  for  which  Milton  put  forth  his  eloquent  plea :  "  unli- 
censed printing."  "  The  liberty  of  the  Press  consists  in 
printing  without,  any  previous  license,  subject  to  the  con- 
sequences  of    law.     The   licentiousness   of  the   Press   is 

was  held  not  to  be  any  justification  in  an  action  against  tbe  author  of  the  libel,  nor  to 
furnish  any  reason  for  not  giving  substantial  damages,  and  the  plaintiff  had  a  verdict 
for  £450.  (Frescoe  v.  May,  2  Fost.  &  F.  123.)  The  pendency  of  other  actions  against 
other  publishers  of  the  same  defamatory  matter,  not  a  mitigating  circumstance. 
(Harrison  v.  Pearce,  1  Fost.  &  F.  567.) 

1  Wandsworth  v.  Bentley,  23  Law  Jour.  Q.  B.  3  ;  IV  Jur.  1077. 

5  Sheldon  v.  Carpenter,  4  N.  V.  57'.).  And  semble,  a  recovery  in  an  action  for 
slander  will  not  bar  an  action  for  malicious  prosecution.  (Jarnigan  v.  Fleming,  43 
MissL  911.) 

8  Rockweller  v.  Brown,  36  N.  Y.  207 ;  and  see  Schoonover  v.  Rowe,  7  Blackf.  202. 
MVakley  v.  Cooke,  16  Law  Jour.  Rep.  225,  Ex. ;   9  Law  Times,  513 ;    16  M.   & 
W.  822. 

6  Campbell  v.  Butts,  3  N.  T.  173. 


43S  DEFENSES.  [Cll.  IX. 

Pandora's  box,  the  source  of  every  evil." *  "  The  liberty 
of  the  Press  is  connected  with  natural  liberty.  The  use 
and  liberty  of  speech  were  antecedent  to  Magna  Charta, 
and  printing  is  only  a  more  extensive  and  improved  kind 
of  sj>eech." 2  "  The  liberty  of  the  press,  therefore,  prop- 
erly understood,  is  the  personal  liberty  of  the  writer  to 
express  his  thoughts  in  the  more  improved  way  invented 
by  human  ingenuity  in  the  form  of  the  Press." 3  "  The 
liberty  of  the  Press  consists  in  the  right  to  publish  with 
impunity,  truth  with  good  motives  and  for  justifiable  ends, 
whether  it  respects  governments,  magistracy,  or  individu- 
als." 4  In  the  sense  of  unlicensed,  the  press  has  been  free 
since  A.  D.  1694.5     And,  except  in  respect  to  newspapers, 

1  Attributed  to  Lord  Mansfield,  cited  Root  v.  King,  7  Cow.  628,  and  commented 
on  1  Mence  on  Libel,  158. 

s  Essay  on  the  liberty  of  the  Press,  chiefly  a3  it  respects  personal  slander,  by 
Bishop  Ilayter,  p.  6. 

3  Holt  on  Libel,  B'k  1,  ch.  iv. 

4  Hamilton  arg.  The  People  v.  Croswell,  3  Johns.  Cas.  360.  And  see  The  Federal- 
ist, No.  81  ;  The  Fourth  Estate;  Areopagitica,  a  speech  for  the  liberty  of  unlicensed 
printing  (Holt  White's  edition  is  the  best);  Story  on  the  Constitution,  $;§  1880  to 
1889 ;  1  Tiudal's  continuation  of  Rapin's  History  of  England,  350,  Remarks  on  Pult- 
ney's  bill  to  prohibit  the  circulation  of  unlicensed  newspapers. 

5  On  the  introduction  of  the  printing  press  into  England,  at  the  expense  of  the 
Government,  the  press  was  regarded  as  a  State  right,  and  subject  to  the  coercion  of 
the  crown.  (See  Hills  v.  University  of  Oxford,  1  Vernon,  275;  Basket  v.  University 
of  Cambridge,  2  Burr.  661.)  It  was  regulated,  therefore,  by  the  king's  proclamations, 
prohibitions,  charters  of  privileges,  and  licenses,  and  then  by  the  decrees  of  the  Court 
of  the  Star  Chamber,  until  the  abolition  of  that  court,  in  1641.  The  Long  Parliament, 
in  1613,  assumed  the  power  of  licensing,  and  this  was  continued  by  various  statutes 
till  169-i.  The  printing  press  was  regarded  as  too  dangerous  a  contrivance  to  be 
suffered  to  be  free.  Governor  Dongan  was  instructed  (A.  D.  1688)  not  to  allow  any 
printing  press  in  New  York,  although  Massachusetts  had  at  that  time  enjoyed  a  print- 
in"-  press  for  nearly  thirty  years.  The  judges  were  unanimously  of  opinion  that 
by  the  common  law  of  England  no  man  not  authorized  by  the  crown,  had  the  right 
to  publish  political  news.  (London  Gazette,  May  5  &  17,  A.  ~D.  1680.)  "  It  was  from 
the  press  that  originated  what  is  in  fact  the  main  distinction  of  the  ancient  and 
modern  world,  public  opinion."  (Holt  en  Libel,  61.)  Whittier  calls  a  newspaper  an 
"  opinion  mill,"  and  speaks  of  an  editor  who 

Ilad  left  the  Muses'  haunts  to  turn 
The  crank  of  an  opinion  mill. 

The  Constitution  of  the  United  States  provides:  Congress  shall  make  no  law 
abridging  the  freedom  of  speech  or  of  the  press.    (Am'dm't  of  1789,  art.  i.)    The 


§  252.]  FREEDOM    OF   THE   PRESS.  439 

no  greater  degree  of  liberty  for  the  press  has  ever  been 
claimed.  Bnt  as  respects  newspapers,  it  is  argued  that 
the  exigencies  of  the  business  of  a  newspaper  editor  de- 
mand a  larger  amount  of  freedom.  That  circumstances  do 
not  permit  editors  the  opportunity  to  verify  the  truth, 
prior  to  publication,  of  all  they  feel  called  upon  to  pub- 
lish, and  that  they  should  not  be  responsible  for  the  truth 
of  what  they  publish.  Some  concessions  have  already 
been  made  to  these  arguments.  At  present  the  law  takes 
no  judicial  cognizance  of  newspapers,  and  independently 
of  certain  statutory  provisions,  the  law  recognizes  no  dis- 
tinction in  principle  between  a  publication  by  the  propri- 
etor of  a  newspaper  and  a  publication  by  any  other  indi- 
vidual.1 A  newspaper  proprietor  is  not  privileged  as  such 
in  the  dissemination  of  news,  but  is  liable  for  what  he 
publishes  in  the  same  manner  as  any  other  individual.2 
This  being  the  case,  after  referring  to  the  statutory  pro- 
visions affecting  publications  in  newspapers,  it  will  be 
unnecessary  separately  to  consider  what  a  newspaper  pro- 


Cpnstitution  of  New  York  provides:  Every  citizen  may  freely  speak,  write,  and  pub- 
lish his  sentiments  on  all  subjects,  being  responsible  for  the  abuse  of  that  right,  and 
no  law  shall  be  passed  to  restrain  or  abridge  the  liberty  of  speech  or  of  the  press. 
(Constitution  of  1846,  art.  1,  §  8.)  This  is  repeated  in  the  Bill  of  Rights  of  that  State, 
and  similar  provisions  are,  we  believe,  to  be  found  in  the  Constitution  of  every  State 
of  the  Union. 

1  Davidson  v.  Duncan,  1  El.  <fe  B.  231 ;  Campbell  v.  Spottiswoode,  8  Law  Times 
Rep.  H".  S.  201 ;  3  Fost.  &  F.  421. 

2  Sheckell  v.  Jackson,  10  Cush.  25.  The  right  to  criticise  is  general;  it  is  not 
the  peculiar  privilege  of  the  press.  (Kane  v.  Mulvany,  2  Ir.  C.  L.  402.)  A  writer  in 
a  newspaper  has  no  other  or  greater  privilege  than  any  other  individual.  (Campbell 
v.  Spottiswoode,  8  Law  Times  Rep.  N".  S.  201.)  As  to  privilege,  there  is  no  differ- 
ence between  a  publication  by  a  newspaper  or  a  private  individual.  (Davison  v. 
Duncan,  7  El.  tfc  B.  231.)  Conductors  of  the  public  press  are  not  privileged  as  such 
in  the  dissemination  of  news,  but  are  liable  for  libellous  publications,  like  other  per- 
sons, without  proof  of  express  malice.  (Sheckell  v.  Jackson,  10  Cush.  (Mass.),  25.) 
On  March  14,  1859,  in  the  New  York  Senate,  Mr.  Ely  introduced  a  bill  to  amend 
chapter  130  of  the  Laws  of  1854  by  providing  that  no  publication  in  any  newspaper, 
respecting  any  person  holding  office  shall  be  deemed  a  libel,  and  providing  that  any 
assault  upon  the  person  of  an  editor  who  has  made  any  such  publication  shall  not  be 
illegal  or  punishable,  unless  resulting  in  the  death  or  maiming  of  the  person 
assaulted. 


440  DEFENSES.  [Ch.  IX. 

prietor  may  or  may  not  publish  with  impunity ;  we  can 
review  his  rights  and  duties  under  the  general  head  of 
criticism.1 

§  253.  To  criticise,  in  its  widest  signification,  means 
passing  an  opinion,  commenting.  In  this  sense  every  one 
is  continually  criticising,2  and  every  one  is  continually 
furnishing  occasion  for  criticism.  Criticism  may  mean 
praise  or  censure.  The  latter  is  the  sense  in  which  it 
is  more  frequently  employed,  and  is  the  only  sense  in 
which  it  enters  into  our  present  inquiry.  We  use  criticism 
as  a  synonym  for  "fault-finding."  Sometimes  the  term 
criticism  is  limited  so  as  only  to  indicate  "  fault-finding  " 

1  Among  the  statutory  provisions  relating  to  libels  in  newspapers  are :  38  Geo. 

III,  ch.  78,  entitled,  An  act  to  prevent  the  publication  of  newspapers  by  persons  not 
known,  <fec,  among  other  provisions,  requires  that  before  any  newspaper  is  started,  the 
proprietor  must  file  an  affidavit  by  the  printer,  publisher,  and  proprietor,  stating  the 
place  where  the  paper  is  to  be  printed,  and  its  title.     This  act  was  amended  5  Wm. 

IV,  ch.  2.  32  Geo.  Ill,  ch.  60,  entitled,  An  act  to  remove  doubts  respecting  functi  ns 
of  juries  in  cases  of  libel.  This  is  the  statute  enabling  juries  to  give  a  general  verdict 
in  actions  of  libel.  The  18th  section  provides  for  a  discovery  in  actions  of  libel.  60 
Geo.  Ill,  ch.  8,  amended,  1  Geo.  IV,  ch.  73;  to  prevent  and  punish  blasphemous  libels. 
60  Geo.  Ill,  ch.  9 ;  to  restrain  abuses  arising  from  the  publication  of  blasphemous  libels. 
This  act  requires  newspaper  proprietors  to  give  security  to  pay  the  damages  and  costs 
in  actions  for  libels  published  in  the  papers  owned  by  them.  6  <fe  7  Vict.  ch.  96 ;  an 
act  to  amend  the  law  respecting  defamatory  words  and  libel.  (Amended  8  &  9  Vict.) 
It  provides,  among  other  things,  that  in  actions  for  libels  in  newspapers  or  period- 
icals, the  defendant  may  plead  that  the  libel  was  inserted  without  actual  malice,  and 
without  gross  negligence,  and  before  the  action,  or  at  the  earliest  opportunity  after- 
wards, he  published  an  apology;  and  gives  liberty,  with  the  plea  of  apology,  to  pay 
money  into  court.  This  act,  it  has  been  held,  does  not  apply  to  criminal  prosecu- 
tions. (Reg.  v.  Duffy,  2  Cox  Cr.  Cas.  45;  9  Ir.  L.  R.  329.)  As  to  this  statute,  see 
Chad  wick  v.  Herepath,  3  C.  B.  885  ;  O'Brien  v.  Clements,  3  Dowl.  <fe  L.  676  ;  Smith 
v.  Harrison,  1  Fosl.  &  F.  365 ;  Jones  v.  Mackie,  Law  Rep.  Ill,  Ex.  1.  As  to  the 
statutes  of  60  Geo.  Ill,  see  Re  Chaplin,  2  Hurl.  &  Colt.  270 ;  lie  Clements,  12  Law  Times, 
380;  18  Law  Jour.  304,  Ex. ;  Re  Gregory,  13  Law  Times,  142;  and  see  32  &  33  Vict, 
ch.  24,  which  repeals  6  tfc  7  W.  IV,  ch  76.  A  plea  of  payment  into  court  and  apol- 
ogy not  allowed  with  a  traverse  of  the  defamatory  sense  imputed  (Barry  v.  McGrath, 
3  Irish  C  L.  576).  Where  there  is  a  plea  of  payment  into  court,  the  payment  is  to 
be  disregarded  in  assessing  damages.  (Jones  v.  Mackie,  37  Law  Jour.  1,  Ex. ;  18 
Law  Times,  N".  S.  151.)  As  to  plea  of  apology,  see  Rish  Allah  Bey  v.  Johnstone,  18 
Law  Times,  N.  S.  620.  See  in  notes  1,  p.  364,  and  5,  p.  435,  ante,  and  Laws  of  N.  Y. 
1852,  ch.  165;  Id.  1868,  ch.  430;  Sanford  v.  Bennett,  24  N.  Y.  20. 

2  "What  distinguishes  man  from  the  other  animals  is,  that  he  alone  has  the  faculty 
of  meddling  with  what  does  not  concern  him. — The  Abbe  Galiani. 


§  254.]  criticism.  441 

in  matters  of  literature  and  art,  or  in  respect  to  persons 
engaged  in  offices  of  public  trust.  We  do  not  attempt  to 
define,  with  any  degree  of  precision,  what  is  the  ordinary 
sense  of  the  term  criticism,  because  we  believe  it  has  no 
definite  connotation,  and  because  we  do  not  recognize  any 
distinct  or  independent  right,  such  as  seems  generally  sup- 
posed to  be  implied  in  or  to  exist  under  the  designation 
of  criticism.  In  our  opinion,  one  cannot,  by  styling  de- 
famatory matter  criticism  and  the  defanier  a  critic,  escape 
from  those  rules  which  apply  to  defamatory  matter  gen- 
erally. 

§  254.  Criticism  may  be  divided  into  criticism  of  per- 
sons and  criticism  of  things.  What  one  does,  one's  actions, 
are  things,  and  as  such  have  a  separate  existence  distinct 
from  the  person.  Every  action,  every  thing  one  does,  is 
naturally  and  necessarily  the  subject  of  comment.  Every 
action,  every  thing  one  does  confers  a  privilege  upon  every 
person  to  speak  or  write  concerning  such  action  or  thing. 
As  to  such  action  or  thing  every  one  may,  in  good  faith, 
speak  or  write  whatever  seems  to  him  fit  to  be  spoken  or 
written  (§  204).  Save  good  faith,  there  is  no  limit  to 
criticism  concerning  a  man's  actions  or  his  creations. 
"  God  forbid  (exclaimed  Baron  Alderson) 1  that  you 
should  not  be  allowed  to  comment  on  the  conduct  of  all 
mankind,  provided  you  do  it  justly  and  honorably." 
"  Public  men,  and  above  all  public  writers,  must  not  com- 
plain if  they  are  sometimes  rather  roughly  treated.  Pub- 
lic writers,  who  expose  themselves  to  criticism,  must  not 
complain  that  such  criticism  is  sometimes  hostile." 2  "  No 
criticism  of  a  person  holding  a  public  office  is  libellous 
unless  malicious." 8  "  No  one  can  doubt  the  importance 
in  a  free  government  of  the  right  to  canvass  the  acts  of 

1  Gathercole  v.  Miall,  15  M.  <fe  W.  319. 
1  Campbell  v.  Spottiswoode,  3  Fost.  «fc  F.  421. 
s  Ilarle  v.  Cathcrall,  14  Law  Times,  N.  S.  801. 
29 


442  DEFENSES.  [Ch.  IX. 

public  men  and  the  tendency  of  public  measures — to  cen- 
sure boldly  the  conduct  of  rulers,  and  to  scrutinize  the 
policy  and  plans  of  government.  This  is  the  great  secu- 
rity of  a  free  government." *  "  An  editor  may  comment 
freely  on  the  acts  of  government,  officers  or  individuals, 
and  indulge  in  occasional  mirth  and  wit,  and  it  is  only 
when  the  character  of  the  publication  is  malicious,  and  its 
tendency  to  degrade  and  excite  to  revenge,  that  it  is  con- 
demned by  the  law,  and  subjects  the  publisher  to  prosecu- 
tion."2 "Liberty  of  criticism  must  be  allowed,  or  we 
should  have  neither  purity  of  taste  or  of  morals.  Fair 
discussion  is  essentially  necessary  to  the  truth  of  history 
and  the  advancement  of  science.  That  publication,  there- 
fore, I  shall  never  consider  as  a  libel  which  has  for  its  object 
not  to  injure  the  reputation  of  any  individual,  but  to  cor- 
rect misrepresentations  of  fact,  to  refute  sophistical  reason- 
ing, to  expose  a  vicious  taste  in  literature,  or  to  censure 
what  is  hostile  to  morality." 3  "  Every  man  who  pub- 
lishes a  book  commits  himself  to  the  judgment  of  the 
public." 4  It  is  of  the  last  importance  to  literature,  and 
through  literature  to  good  taste  and  good  feeling,  to  nior- 


1  Story  on  the  Constitution,  §  1888. 

2  Tappan  v.  Wilson,  1  Ohio,  193. 

3  L'd  Ellenborough,  Tabart  v.  Tipper,  1  Camp.  350 ;  and  see  Cooper  v.  Stone,  24 
Wend.  442.  An  application  for  an  information  was  refused  against  one  for  publish- 
ing that  Ward's  pill  and  drop  had  done  great  mischief  in  twelve  different  cases,  and 
that  they  were  a  compound  of  poison  and  antimony,  <fec.  (Rex  v.  Roberts,  3  Bac. 
Abr.  tit.  Libel,  492.)  In  Hibbs  v.  Wilkinson,  1  Fost.  <fe  F.  608,  the  action  was  for 
libel,  first  of  the  plaintiff  generally,  secondly  as  a  clergyman.  It  appeared  that 
defendant  had  published  a  pamphlet  entitled  "  Truth  Vindicated,"  and  the  alleged 
libels  were  contained  in  a  review  of  that  pamphlet  published  in  a  newspaper.  Ver- 
dict for  defendant;  and  by  Erie,  C.  J.:  Where  the  plaintiff  and  defendant  have  both 
had  recourse  to  the  press,  and  the  libel  has  been  published  in  the  course  of  a  discus- 
sion in  which  both  parties  have  been  before  the  public,  and  in  which  the  plaintiff 
first  had  recourse  to  the  press,  and  made  the  matter  public,  it  is  important  to  see 
if  malice  has  been  made  out  against  the  party  sued,  or  if  he  has  published  only  what 
he  believed  was  required  for  the  interests  of  truth. 

4  Carr  v.  Hood,  1  Camp.  358.  See  Reede  v.  Sweetzer,  6  Abb.  Pr.  R.  N.  S.  9,  in  a 
note;  a  lengthy  report  of  the  trial  of  an  action  for  libel  on  plaintiff  as  the  author  of 
Griffith  Gaunt. 


§  255.]  criticism.  443 

ality,  and  to  religion,  that  works  published  for  general 
perusal  should  be  such  as  are  calculated  to  improve,  and 
not  to  demoralize,  the  public  mind ;  and  therefore  it  is  of 
vast  importance  that  criticism,  so  long  as  it  is  fair,  reason- 
able, and  just,  should  be  allowed  the  utmost  latitude,  and 
that  the  most  unsparing  censure  of  works  which  are  fairly 
subject  to  it  should  not  be  held  libellous.  A  man  who 
publishes  a  book  challenges  criticism ;  he  rejoices  in  it  if 
it  tends  to  his  praise,  and  if  it  be  likely  to  lead  to  an 
increase  in  the  circulation  of  his  work,  and  therefore  he 
must  submit  to  it  if  it  be  adverse,  so  long  as  it  is  not 
prompted  by  malice,  or  characterized  by  such  reckless  dis- 
regard of  fairness  as  indicates  malice  toward  the  author." * 

§  255.  But,  as  respects  the  person,  except  in  the  in- 
stances and  to  the  extent  heretofore  pointed  out,  there  is 
no  privilege  of  criticism.  Defamatory  language  concerning 
a  person  can  never  be  justified  merely  on  the  ground  that 
it  was  published  as  a  criticism.  Whenever  defamatory 
matter  concerning  a  person  is  justifiable — i.  e.,  not  action- 
able— it  is  on  some  other  ground  than  that  the  language 
was  published  as  a  criticism.  "  No  man  has  a  right  to 
render  the  person  or  abilities  [inseparable  incidents  to 
the  person]  of  another  ridiculous." 2  "I  think  no  personal 
ridicule  of  the  author  is  justifiable." 3  If  an  author  "  has 
made  himself  ridiculous  by  his  writings,  he  may  be  ridi- 
culed ;  if  his  works  show  him  to  be  vicious,  his  reviewer 
may  say  so.  But  the  latter  has  no  right  to  violate  the  truth 
in  either  respect." 4  "  If  the  jury  can  discover  anything 
personally  slanderous  against  the  plaintiff  (an  author)  un- 
connected with  the  works  he  has  given  to  the  public,  in 


1  Cockburn,  C.  J.,  Strauss  v.  Francis,  4  Fost.  &  F.  1114. 
a  Holt,  Ch.  J.,  Rex  v.  Tutchin,  2  L'd  Raym.  1061. 
3  Best,  Ch.  J.,  Thompson  v.  Shackell,  1  Mo.  &  Malk.  187. 

*  Cooper  v.  Stone,  24  Wend.  412.     Does  not  this  mean  the  reviewer  can  only 
justify  ridiculing  an  author,  or  accusing  him  of  being  vicious,  by  a  defense  of  truth. 


444  DEFEASES.  [Cll.  IX. 

that  case  the  plaintiff  has  a  good  cause  of  action." 1  "With- 
out pretending  to  elicit  the  true  source  of  the  confusion  of 
thought  so  obvious  in  all  the  dicta  and  decisions  upon  the 
subject  of  criticism,  we  venture  to  assert  that  the  difficulty 
is  occasioned  by,  (1)  overlooking  the  distinction  between 
language  concerning  the  person  and  language  concerning 
a  thing;  and  (2)  in  treating  certain  persons — authors, 
artists,  &c. — as  if  a  rule  applied  to  them  and  to  their  pro- 
ductions different  from  the  rules  which  apply  to  the  man- 
ufacturer and  to  the  merchant.  It  seems  not  to  have  been 
kept  in  view  that  an  author  is  but  a  producer,  and  the 
maker  of  a  watch  is  an  autlwr  equally  with  the  maker  of 
a  book.  There  is  nothing  at  this  day  in  the  vocations  of 
the  author,  the  actor,  the  painter,  or  the  sculptor  which 
makes  the  rights  and  duties  of  those  who  follow  them  less 
or  greater  than  the  rights  and  duties  of  those  engaged  in 
any  other  employment.  We  should  construe  language 
concerning  an  author  or  an  artist  by  the  same  rules  as  we 
construe  language  concerning  a*  lawyer,  or  a  physician,  a 
merchant,  or  a  mechanic.     "  There  is  no  doubt  that  a  man 


1  L'd  Ellenborough,  Carr  v.  Hood.  1  Camp.  358.  But  in  the  same  case  his  Lord- 
ship is  reported  to  have  said :  "  If  the  defendant  only  ridiculed  the  plaintiff  as  an 
author,  the  action  could  not  be  maintained." 

In  the  case  of  Stuart  v.  Lovell,  2  Stark.  Cas.  73,  the  plaintiff  being  one  of  the  pro- 
prietors of  the  Courier  newspaper,  brought  his  action  for  libel  against  the  defendant, 
the  editor  of  the  Statesman  newspaper.  Lord  Ellenborough,  in  charging  the  jury, 
observed:  "  In  the  first  place,  the  plaintiff  was  described  as  the  prostituted  Courier, 
and  his  full-blown  baseness  and  infamy  were  represented  a3  holding  him  fast  to  his 
present  connections,  and  preventing  him  from  forming  new  ones.  It  was  certainly 
competent  in  one  public  writer  to  criticise  another,  exerting  his  talents  in  all  the  lati- 
tude of  free  communication  belonging  to  a  public  writer;  and  so  it  appeared  to  Lord 
Kenyon,  in  Heriot  v.  Stuart,  1  Esp.  Cas.  337,  that  the  opinions  and  principles  of  a 
public  writer  were  open  to  ridicule,  in  the  same  way  as  those  of  any  other  author, 
but  that  the  privilege  did  not  extend  to  calumnious  remarks  on  the  private  character 
of  the  individual.  In  that  respect,  the  editor  of  a  newspaper  enjoyed  the  rights  of 
protection  in  common  with  every  other  subject.  Since,  then,  the  defendant  in  this 
case  had  stigmatized  the  defendant  as  the  venerable  apostle  of  tyranny  and  oppres- 
sion, and  as  a  man  whose  full-blown  baseness  and  iufamy  held  him  fast  to  his  present 
connection,  because  they  left  him  without  the  power  of  forming  new  ones;  in  all  this 
he  had  undoubtedly  overstepped  the  limits  which  had  been  drawn,  and  by  which  his 
conduct  ought  to  have  been  regulated." 


§  256.]  ceiticism.  445 

who  is  an  author  has  a  right  to  have  his  character  pro- 
tected the  same  as  if  he  acted  in  any  other  capacity. 
However,  notwith standing  that,  whatever  is  fair  and  can 
be  reasonably  said  of  the  works  of  authors,  or  of  tin  m- 
selves  as  connected  with  their  works,  is  not  actionable,  un- 
less it  appear  that  under  the  pretext  of  criticising  the 
tvo?*lcs,  the  defendant  takes  the  opportunity  of  attacking 
the  character  of  the  author,  and  then  it  will  be  a  libel." 1 
"  I  will  not  stop  to  weigh  the  argument  which  would  dis- 
franchise him  (the  plaintiff)  because  he  is  an  author."2 
The  essential  questions  in  every  case  of  criticism  are,  (1) 
Does  the  matter  upon  its  face  concern  a  thing?  (2)  and  if 
it  does,  was  it  composed  and  published  in  good  faith  ? 
Whatever  other  questions  may  arise,  they  are  but  second- 
ary, and  are,  as  already  noticed  (§  204),  material  only  so 
far  as  they  serve  to  furnish  answers  to  the  two  essential 
questions  here  mentioned. 

§  256.  It  was  held  to  be  within  the  limits  of  criticism 
to  publish  of  a  newspaper :  "  It  is  the  most  vulgar,  igno- 
rant, and  scurrilous  journal  ever  published  in  Great 
Britain."  3  This  affected  only  the  character  of  the  news- 
paper, and  not  (except  remotely)  the  reputation  of  any 
person.  So  it  is  within  the  limits  of  criticism  to  publish 
of  a  painting,  that  it  was  a  mere  daub,  with  other  strong 


1  Tenterden,  C.  J.,  Macleod  v.  Wakely,  3  C.  &  P.  311.  If  the  critic  go  out  of  his 
way  to  attack  the  private  character  of  the  author,  such  an  attack  is  a  libel.  (L'd 
Abinger,  Fraser  v.  Berkeley,  V  C.  &  P.  621.)  It  is  important  that  a  line  should  be  drawn 
between  fair  discussion  for  the  promotion  of  the  truth  and  publications  for  the  asper- 
sion of  personal  character.     (Erie,  C.  J.,  Hibbs  v.  Wilkinson,  1  Fost.  &  F.  010.) 

4  Cooper  v.  Stone,  24  Wend.  442.  In  all  cases  of  criticism,  "  The  question  is  one 
of  good  faith."  (/</.)  "The  only  question  is,  whether  there  was  any  excess  in  the 
comments ;  that  was  matter  entirely  for  the  jury."  (Cockburn,  C.  J.,  Kelly  v. 
Tinling,  Law  Rep.  1  Q.  B.  *701.)  If  it  be  shown  that  the  comment  is  unjust,  is 
malevolent,  and  exceeding  the  bounds  of  fair  opinion,  it  is  actionable.  (Dibdin  v. 
Swan,  1  Esp.  28.) 

3  Ileriot  v.  Stuart,  1  Esp.  Cas.  437 ;  but  it  was  in  that  case  held  actionable  to  pub- 
lish of  a  newspaper,  that  it  was  low  in  circulation.  And  see  Latimer  v.  West.  Morning 
News  Asso.,  25  L.  T.  N.  S.  44. 


446  DEFENSES.  [Cll.  IX. 

terms  of  censure;1  or  of  an  architect,  that  he  acts  on 
absurd  principles  of  art.2  In  both  of  the  two  last  pre- 
ceding cases,  it  was  left  to  the  jury,  as  a  question  of  fact, 
whether  the  censure  was  unfair  and  intemperate,  and 
intended  to  injure  the  persons  of  the  plainthTs.  It  was 
held  not  to  be  within  the  limits  of  criticism  to  publish  of 
the  plaintiff,  a  floricultural  exhibitor,  "  the  name  of  Gr.  is 
to  be  rendered  famous  in  all  sorts  of  dirty  work ;  the 
tricks  by  which  he,  and  a  few  like  him,  used  to  secure 
prizes,  seem  to  have  been  broken  in  upon  by  some  judges, 
more  honest  than  usual.  If  G.  be  the  same  man  who  wrote 
an  impudent  letter  to  the  Metropolitan  Society,  he  is  too 
worthless  to  notice ;  if  he  be  not  the  same  man,  it  is  a 
pity  that  two  such  beggarly  souls  could  not  be  crammed 
into  the  same  carcass." 3  Nor  is  it  within  the  limits  of 
criticism  to  write  of  the  publisher  of  a  magazine,  that  he 
had  inserted  in  his  magazine  a  series  of  articles,  the 
greater  part  of  which  were  false  and  of  a  gross  charac- 
ter ; 4  nor  to  write  of  a  book  publisher,  that  he  published 
books  of  an  immoral  character,  and  ascribing  to  him  the 
authorship  of  some  silly  rhymes.5  Where  the  plaintiff, 
a  surgeon,  had  presented  a  petition  to  Parliament  against 
empirics  and  irregular  practitioners,  and  defendant,  in  a 
medical  journal,  had  commented  on  the  petition,  reflecting 


1  Thompson  v.  Shackell,  1  Mo.  &  Malk.  187. 

2  Soane  v.  Knight,  1  Mo.  &  Malk.  74. 

s  Green  v.  Chapman,  4  Bing.  X.  C.  92  ;  5  Sc.  340. 

4  Colburn  v.  Whiting,  cited  Cooke  on  Defam.  58,  and  see  Cooper  v.  Stone,  24  Wend. 
434.  Where  it  is  said  not  to  be  within  the  limits  of  criticism  to  impute  to  an  author 
falsehood  and  unworthy  motives  in  the  production  of  a  book. 

6  Tabart  v.  Tipper,  1  Camp.  350,  the  rhymes  were  : 

There  was  a  little  maid, 
And  she  was  afraid 

Her  sweetheart  would  come  to  her, 
She  bound  up  her  head, 
When  she  went  to  bed, 

And  she  fastened  her  door  with  a  skewer. 

And  were  followed  by  this  line : 

Dixin  ego  vobis  Atticam  quandam  inessee  elegantiam. 


§  256.]  ceiticism.  447 

on  the  plaintiff  for  ignorance  generally,  and  particularly  in 
chemical  knowledge ;  and  the  judge  had  directed  the  jury, 
that  if  they  considered  the  libel  a  fair  comment  on  the 
petition,  and  not  a  malicious  effusion  against  the  plaintiff, 
and  also  if  they  considered  that  it  imputed  to  him  igno- 
rance in  chemistry  only,  and  not  in  his  profession  as  a 
surgeon,  to  find  for  the  defendant,  which  they  did ;  the 
court  granted  a  new  trial.1  Where  the  plaintiff,  a  "  marine 
store  dealer,"  had  exhibited  a  placard  in  front  of  his  store, 
offering  certain  prices  for  kitchen  stuff,  candle  ends, 
pewter,  plated  goods,  &c,  and  proposing  to  fetch  them 
from  private  houses.  Some  observations  upon  this 
placard  had  been  made  by  a  magistrate  officially ;  npon 
which  the  defendant  published  in  a  newspaper  an  article 
headed,  "  Encouraging  servants  to  rob  their  masters,"  and 
imputing  that  the  placard  was  calculated  or  intended  to 
encourage  servants  to  rob  their  masters.  The  placard 
was  held  to  be  a  proper  subject  of  criticism,  and  as  the 
article  did  not  go  beyond  the  placard,  or  attack  the 
plaintiff  in  anything  not  fairly  arising  out  of  that  docu- 
ment, it  was  held  privileged.2 

1  Dunne  v.  Anderson,  3  Bing.  88.  The  reporter,  erroneously  as  we  think,  puts 
this  decision  on  the  ground  that  presenting  a  petition  to  Parliament  is  an  act  not 
obnoxious  to  criticism.  The  error  for  which  the  new  trial  was  granted  was  the 
direction  to  find  for  the  defendant,  if  the  imputation  was  of  ignorance  in  chemistry 
only. 

2  Paris  v.  Levy,  9  C.  B.  K  S.  342  (in  banc);  2  Fos.  &  F.  71  (nisi  prius).  It  was 
held  not  to  be  a  libel  upon  a  dealer  in  coal  in  L.,  who  had  advertised  genuine  Franklin 
coal  for  sale,  to  publish  the  following  advertisement :  "  Caution. — The  subscribers, 
the  only  shippers  of  the  true  and  original  Franklin  coal,  notice  that  other  coal  dealers 
in  L.  than  our  agent,  J.  S.,  advertise  Franklin  coal.  We  take  this  method  of  caution- 
ing the  public  against  buying  of  other  parties  than  J.  S.,  if  they  hope  to  get  the  genuine 
article,  as  we  have  neither  sold  nor  shipped  any  Franklin  coal  to  any  party  in  L.,  except 
our  agent,  J.  S."     (Boynton  v.  Remington,  3  Allen,  397.) 

In  a  previous  note  (No.  4,  p.  346)  we  directed  attention  to  the  views  of  Lord  Chief 
Justice  Cockburn  on  criticism;  we  recur  to  the  subject  to  give  some  extracts  from 
his  charge  in  the  case  of  Seymour  v.  Butter  worth,  reported  at  length  in  the  "  Law 
Magazine  and  Law  Review"  (London),  February,  1803,  and  given  in  an  abridged 
form  in  The  Monthly  Law  Reporter  (Boston),  May,  1863  ;  also  reported  3  Fost.  <fe  F. 
384.  The  plaintiff,  a  barrister,  Recorder  of  Newcastle-upon-Tyne,  and  member  of 
Parliament,  sued  for  an  alleged  libel  upon  him,  published  in  the  Law  Magazine.    We 


448  DEFENSES.  [Cll.  IX. 

§  256a.  The  conduct  of  a  party  to  .a  suit,  in  giving  Ms 
testimony  as  a  witness  in  a  court  of  justice,  is  a  fair  subject 

find  in  the  charge:  (1.)  A  man's  jsublic  political  conduct  is  matter  for  the  freest  and 
fullest  discussion  on  the  part  of  a  writer  in  a  public  journal.  (2.)  To  animadvert  on 
those  who  lend  themselves  to  a  system  of  buying  and  selling  votes  in  Parliament,  "  is 
within  the  legitimate  province  of  a  public  writer,"  but  if  he  goes  beyond  that,  and 
asserts  that  one  "  has  bargained  to  sell  his  vote,"  it  is  a  charge  which  no  man,  whether 
writing  in  public  or  in  private,  ought  to  dare  to  make.  (3.)  All  men  who  occupy 
public  positions  must  submit,  now  and  then,  to  be  a  little  roughly  handled,  and  to  be 
uncourteously  and  even  unjustly  treated,  and  people  must  not  be  too  thin-skinned  in 
reference  to  such  matters.  It  has  happened  to  everybody  who  has  had  anything  to 
do  with  public  life,  to  have,  at  one  time  or  other,  observations  made  upon  his  conduct 
and  motives,  which,  in  all  probability,  at  the  bottom  of  his  heart,  he  has  felt  to  be 
unfounded  and  unjust ;  but  we  submit  to  it,  and  why  ?  because  we  know  that,  upon 
the  whole,  that  bringing,  by  means  of  the  public  press,  the  conduct  and  motives  of 
public  men  to  the  bar  of  public  opinion,  is  the  best  security  for  the  discharge  of  public 
duty.  (4.)  It  is  claimed  that,  although  the  conduct  of  a  public  man  is  open  to  public 
discussion,  his  private  conduct  is  not,  and  that  it  does  not  lie  in  the  mouth  of  a  man, 
who  has  attacked  another  with  reference  to  his  private  conduct,  to  say,  I  did  it  only 
in  the  fair  discharge  of  a  public  duty.  But  there  is  this  distinction  in  this  case,  that, 
however  true  that  proposition  may  be  with  reference  to  the  private  conduct  of  a  private 
individual,  the  plaintiff  does  not  occupy  the  position  of  a  private  individual.  *  *  * 
It  is  impossible  to  say  the  plaintiff  was  not  a  public  man,  and  that  his  conduct,  if  it 
had  reference  to  his  fitness  to  be  &  public  man  and  to  occupy  a  public  position,  was 
not  a  matter  fit  for  discussion.  (5.)  I  must  dissent  from  the  proposition,  that  where 
a  man  holds  a  public  position  in  which  integrity,  honesty,  and  honor  are  essential  and 
indispensable  qualifications,  if  in  his  private  conduct  he  shows  he  is  destitute  and 
devoid  of  those  essential  elements,  that  it  is  not  a  fair  subject  for  public  animadver- 
sion and  hostile  criticism,  so  long  as  the  writer  confines  himself  within  the  boxinds  of 
truth  and  within  the  limits  of  fair  and  just  observation.  Elsewhere  in  the  charge  his 
Lordship  speaks  of  the  rights  and  duties  of  a  public  writer,  and  generally  speaks  as 
if  a  public  writer  was  a  person  with  peculiar  rights  and  duties,  whereas  the  law 
recognizes  no  such  office  as  that  of  a  public  writer,  and  gives  him  no  privileges 
except  as  mentioned  ante,  note  1,  p.  364.  "We  do  not  con-ider  sound  the  distinction 
between  public  men  and  private  men,  and  public  acts  and  private  acts.  To  say,  as 
is  said  in  the  fifth  of  the  foregoing  extracts,  that  one  maj'  criticise  "  so  long  as  the 
■writer  confines  himself  within  the  bounds  of  truth  and  within  the  limits  of  fair 
and  just  observation"  is  merely  saying  one  may  publish  the  truth,  and  criticise 
where  it  is  fair  and  just  to  do  so.  To  limit  criticism  to  just  criticism,  is  in  effect 
to  toll  the  right  of  criticism,  as  it  substitutes  the  judgment  of  the  jmy  for  the 
judgment  of  the  critic.  In  another  case,  Strauss  v.  Francis  (4  Fost.  &  F.  939), 
also  tried  before  Lord  Cockburn,  the  plaintiff  was  the  author  of  a  novel  called 
"  The  Old  Ledger,"  and  the  defendant  the  editor  of  the  Athenaeum.  The  defend- 
ant published  a  criticism  of  this  novel,  for  which  the  plaintiff  brought  an  action 
for  libel,  and  on  the  trial  withdrew  a  juror.  The  defendant  then  published  an  article 
under  the  heading  "The  Rights  of  Criticism,"  in  which  he  republished  the  original 
criticism,  with  comments  on  the  trial  at  which  the  plaintiff  withdrew  a  juror.  In  an 
action  for  this  second  publication  (4  Fost.  <fc  F.  1108),  the  judge  charged  the  jury 
"  that  the  action  related  to  two  separate  matters  of  complaint,  which  should  be  kept 
distinct — first,  the  review  on  the  work ;  next,  the  comments  on  the  trial.     The  repub- 


256«.] 


criticism.  449 


of  comment.  The  administration  of  justice  is  a  matter  of 
public  interest,  and  therefore  a  proper  subject  of  public 

lication  of  the  criticism  on  the  work  brought  it  under  the  notice  of  the  jury,  and  it 
would  be  for  them  to  say  whether  the  criticism  was  fair  and  reasonable,  or  whether 
the  writer  of  it  was  actuated  by  malice.  That  it  was  severe  there  could  be  no  doubt, 
but  the  question  was,  was  the  severity  warranted  by  the  nature  of  the  book.  It  was 
conceded  that  it  was  of  vast  importance  to  literature,  and  through  literature,  to  the 
morals,  religion,  good  taste,  and  good  feelings  of  the  public,  that  works  which  were 
laid  before  them  for  their  perusal  should  be  of  such  a  character  that  they  would  im- 
prove and  not  demoralize.  It  was,  therefore,  right  and  wholesome  that  criticism,  so 
long  as  it  was  fair  and  just,  should  be  allowed  the  largest  latitude.  Authors  courted 
criticism,  because,  if  it  were  favorable,  it  would  secure  popularity  for,  and  extend 
the  circulation  of,  their  works;  but,  as  they  challenged  criticism,  they  should  submit 
to  it  when  it  was  adverse,  so  long  as  it  was  not  prompted  by  recklessness  or  malice. 
It  had  been  contended  on  behalf  of  the  plaintiff  that  it  was  unfair  to  select  isolated 
passages  from  a  work  and  fasten  on  them,  disparaging  the  spirit  and  character  and 
object  of  the  entire  book;  but  that  observation  was  open  to  this  remark,  that  it  was 
not  because  a  work  might,  as  a  whole,  be  good,  that  a  critic,  if  he  found  many  pass- 
ages of  an  obnoxious  character,  must  abstain  from  commenting  on  them.  That  some 
of  the  passages  read  warranted  the  charge  of  indelicacy,  some  the  charge  of  profan- 
ity, and  many  of  them  the  charge  of  gross  vulgarity,  was,  he  thought,  a  matter  as  to 
which  they  could  not  fail  to  give  an  answer  in  the  affirmative.  The  fair  critic  was  a 
prosecutor  who  brought  to  the  bar  of  jrablic  opinion  offenders  against  good  taste, 
against  delicacy  and  propriety.  The  work  in  question  was  denounced  as  being  abom- 
inable. That  was  no  douht  a  strong  expression.  It  was  for  the  jury,  having  the 
book  before  them,  and  having  heard  what  had  been  said  for  and  against  it,  to  say 
whether  the  criticism  in  question  was  a  fair  rejjresentation  of  the  character  of  the 
work.  The  jury  found  for  the  defendant.  In  another  case,  Campbell  v.  Spottiswoode, 
(3  Fost.  &  F.  421),  we  quote  from  the  London  Quarterly  Review  of  April,  1865,  art. 
Libel.  The  plaintiff,  the  editor  of  the  British  Standard,  had  published  in  that  news- 
paper a  series  of  appeals  on  behalf  of  Missions  to  China.  The  alleged  libel  was  an 
article  published  in  the  Saturday  Review,  commenting  on  those  appeals,  and  in  which 
the  plaintiff  was  called  an  "  impostor,"  and  charged  "  wilh  scandalous  and  flagitious 
conduct."  On  a  trial  before  Lord  Cockburn,  the  plaintiff  had  a  verdict,  the  judge 
charging  the  jury  that  the  defendant  had  exceeded  the  limits  of  criticism,  and  added, 
"  It  cannot  be  said  that  because  a  man  is  a  public  man,  a  writer  is  entitled  not  only 
to  pass  judgment  upon  his  conduct,  but  to  ascribe  to  him  corrupt  and  dishonest 
motives."  A  motion  for  a  new  trial  was  denied  ;  Lord  Cockburn,  in  giving  judgment 
(8  Law  Times  Rep.  N.  S.  201 ;  3  B.  &  S.  T69 ;  3  Fost.  &  Fin.  421,  note),  said:  "  But 
it  seems  to  me  that  a  line  must  be  drawn  between  hostile  criticism  upon  a  man's 
public  conduct,  and  the  motives  by  which  that  conduct  may  be  supposed  to  be  influ- 
enced, and  that  you  have  no  right  to  impute  to  a  man  in  his  conduct  as  a  citizen — 
even  though  it  be  open  to  ridicule  or  disapprobation — base,  sordid,  dishonest,  or 
wicked  motives,  unless  there  is  so  much  ground  for  the  imputation  that  a  jury  shall  be 
of  opinion,  not  only  that  you  may  have  honestly  maintained  some  mistakt  n  b<  lief  upon 
the  subject,  but  that  your  belief  is  well  founded  and  not  without  cause."  We  do  not  under- 
stand the  part  in  italics.  In  our  opinion  his  Lordship  should  have  said  that  you  must 
not  impute  dishonest  or  wicked  motives,  unless  you  can  establish  the  truth  of  the  im- 
putation,    lie  came  very  near  to  our  views  in  Turnbull  v.  Bird  (2  Fost.  it  F.  508), 


450  DEFENSES.  [Ch.  IX. 

comment ; 1  where  the  libel  was  a  comment  upon  a  proceed- 
ing before  a  magistrate,  the  court  charged,  that  if  the  publi- 
cation meant  that  the  magistrate  had  acted  hastily  in  dis- 
missing the  case,  and  that  it  would  have  been  more 
satisfactory  if  all  the  evidence  had  been  heard  that  would 
be  legitimate  comment ;  but  if,  under  the  pretence  of  com- 
menting upon  the  magistrate,  the  publication  was  intended 
to  charge  the  plaintiff  with  being  guilty  of  the  offense  for 
which  he  had  been  arraigned,  it  was  not  privileged.2 

§  257.  As  the  right  of  criticism  is  confined  to  criticis- 
ing actions  or  things,  it  necessarily  follows  that  as  a  pre- 
liminary to  all  right  of  criticism,  it  must  appear  that  the 
action  or  thing  criticised  had  an  existence ;  therefore,  a 
justification  on  the  ground  of  criticism  can  never  prevail, 
unless  the  existence  of  the  action  or  thing,  which  the 
criticism  is  alleged  to  concern,  is  either  admitted  or  proved. 
An  alleged  criticism  consists  in  the  statement  or  assump- 
tion of  certain  facts,  and  of  comments  thereon.     Where 

(we  still  quote  from  the  London  Quarterly),  in  which  he  charged  the  jury,  "  if  you 
are  of  opinion  that  the  defendant,  in  the  comments  that  he  made,  was  guilty  of  any 
wilful  mis-statement  of  fact,  either  by  the  exaggeration  of  what  actually  existed,  or 
by  the  partial  suppression  of  what  actually  existed,  so  as  to  give  it  another  color,  or 
if  he  makes  his  comments  with  any  mis-statement  of  fact,  which  he  must  have  known 
to  be  a  mis-statement,  by  the  exercise  of  ordinary  care,  than  he  loses  his  privileges,  and 
the  occasion  does  not  justify  the  publication."  We  should  indorse  this  if  the  words 
in  italic  were  omitted.     See,  however,  Cooper  v.  Lawson,  8  Adol.  &  El.  746. 

Publication,  by  Reform  Commissioners,  of  a  report  imputing  bribery  to  plaintiff, 
giving  his  name  as  one  who  had  been  sued  for  bribery,  was  held  not  privileged. 
(Wilson  v.  Reed,  2  Fost.  &  F.  149.)  The  plaintiff  was  the  publisher  of  Zadkiel's 
Almanac,  an  astrological  publication ;  the  defendant  charged  that  the  plaintiff,  being 
the  publisher  of  that  silly  work,  had  gulled  by  means  of  a  magic  ball  of  crystal  in 
which  future  events  could  be  seen  ;  held  that  this  could  be  justified  only  by  proving 
that  plaintiff,  knowing  it  to  be  an  imposture,  took  money  from  the  public  for  the 
use  of  said  ball.  (Morrison  v.  Belcher,  3  Fost.  &  Fin.  614.)  See  Eastwood  v. 
Holmes,  1  Fost.  &  Fin.  347.  A  publication  of  a  report  of  an  inspector  of  char- 
ities under  the  charitable  trust  act,  containing  a  letter  written  several  years  pre- 
viously, reflecting  on  plaintiff,  held  conditionally  privileged.  (Cox  v.  Feeney,  4  Fost. 
&  Fin.  13.) 

1  Kane  v.  Mulvany,  2  Ir.  C.  L.  402 ;  and  see  Hedley  v.  Barlow,  4  Fost.  &  F.  227. 

s  Ilibbins  v.  Lee,  4  Fost.  &  F.  245;  and  see  "Woodgate  v.  Ridout,  4  Fost.  <fe  F. 
202. 


§  258].  CELTICISM.  451 

these  facts  are  not  admitted,  to  constitute  a  justification 
their  existence  must  be  shown.  Hence,  to  justify  a  criti- 
cism, it  is  sometimes  necessary  to  allege,  that  the  facts 
which  warrant  a  criticism  exist,  and  that  the  comment  on 
those  facts  is  fair.1  Where  the  defamatory  matter  was 
that  plaintiff,  a  tradesman  in  London,  became  surety  for 
the  petitioners  in  the  Berwick  election  petition,  and  falsely 
stated  on  oath  a  sufficient  property  qualification,  when,  in 
truth,  he  was  not  able  to  pay  his  debts.  It  then  asked 
why  the  plaintiff,  being  unconnected  with  Berwick,  should 
take  so  much  trouble  and  incur  such  an  exposure  of  em- 
barrassments, and  proceeded :  "  There  can  be  but  one 
answer  to  these  queries — he  is  hired  for  the  occasion." 
The  defendant  justified  as  true  all  the  publication,  except 
the  charge  of  being  hired,  as  to  which  no  mention  was 
made,  and,  as  a  further  defense,  that  the  publication  was 
i\  correct  report  of  judicial  proceedings,  with  a  fair  and 
bona  fide  commentary  thereon.  Held,  it  was  properly  left 
to  the  jury  to  say  whether  the  imputation  that  the  plain- 
tiff was  hired  was  a  fair  comment.2 

§  258.  As  criticism  is  opinion,  it  can  never  \>e  primarily 
material  to  inquire  into  its  justness.  The  right  to  criticise 
implies  the  right  to  judge  for  one's  self  of  the  justness  of  the 
criticism.  It  would  be  but  a  delusion  to  say  one  has  the 
right  to  criticise  provided  the  criticism  be  just.  The 
justness  or  unjustness  can  never  be  more  than  matter  of 
opinion.  The  test  always  is,  was  the  criticism  bona  fide. 
It  is  like  the  case  of  one  writing  concerning  the  sanity  of 
another ;  the  test  of  the  justification  is  not,  was  the  State- 
ly v.  Bennett,  1  Code  Rep.  N.  S.  239;  5  Sandf.  54;  Buddington  v.  Davis,  6 
How.  Pr.  R.  401.  "  The  occasion  of  the  publication  of  libellous  matter  is  never 
irrelevant,  and  is  for  the  jury,  and  the  jury  have  to  consider  taking  into  view  the 
occasion  on  which  matter  is  written  which  might  injure  another,  is  it  a  fair  and 
proper  comment,  or  is  it  not  more  injurious  than  the  circumstances  warranted  ?  But 
on  the  other  hand  it  has  never  been  held  that  the  occasion  being  lawful  can  justify 
any  libel  however  gross."  (Reg.  v.  Hicklin,  Law  Rep.  III.  Q.  B.  37C,  Blackburn,  J.) 
'  Cooper  v.  Lawson,  8  Adol.  &  El.  746. 


452  criticism.  [Ch.  IX. 

raent  such  as  a  man  of  sound  sense  would  have  made,  but 
was  it  the  honest  conviction  of  the  publisher  (§  206). 
Although  that  was  a  case  of  comment  or  giving  an 
opinion  or  criticism,  was  in  fact,  a  criticism  concerning  the 
person,  and  found  its  justification,  not  in  its  being  a  critic- 
ism, but  because  the  publication  was  made  to  protect  the 
interest  of  another.  When  it  is  argued  that  the  right  to 
criticise  rests  upon  the  interest  which  the  community 
generally  inay  have  in  the  subject  of  the  criticism,  it  is  a 
confusion  of  two  different  and  distinct  rights.  The  com- 
munity are  no  more  interested  in  the  person  or  reputation 
of  any  one  individual  than  in  the  person  or  reputation 
of  any  other  member  of  society.  Nor  is  there  any  foun- 
dation for  the  distinction  sometimes  attempted  to  be  drawn 
between  the  public  and  \\±%  private  character  or  standing 
of  an  individual;  and  although  there  are  isolated  dicta 
that  appear  to  favor  the  idea  that  a  person  occupying  a 
public  situation  is  thereby  rendered,  personally,  a  subject 
of  criticism,  yet,  as  we  conceive,  the  context  of  these 
dicta  so  far  explains  them  as  to  limit  the  right  of  criticism 
to  the  actions.  Thus  it  has  been  said  :  "  Every  man  has 
a  right  to  discuss  matters  of  public  interest.  A  clergyman 
with  his  flock,  an  admiral  with  his  fleet,  a  general  with  his 
army,  and  a  judge  with  his  jury — we  are  all  of  us  the 
subjects  for  public  discussion ;  and  provided  a  man 
whether  in  a  newspaper  or  not,  publishes  a  comment  on  a 
matter  of  public  interest,  fair  in  tone  and  temperate, 
although  he  may  express  opinions  that  you  may  not  agree 
with,  that  is  not  a  subject  for  an  action  for  libel;  because 
whoever  fills  a  public  position,  renders  himself  open  to 
public  discussion ;  and  if  any  part  of  his  public  acts  is 
wrong  he  must  accept  the  attack  as  a  necessary  though 
unpleasant  circumstance  attaching  to  his  position.  In  this 
country  everything,  either  by  speech  or  writing,  may  be 
discussed  for  the  benefit  of  the  public.  No  doubt,  there- 
fore, the  defendant  was  at  liberty  to  discuss  the  opinions 


§§  259-60.]  criticism.  453 

or  proceedings  of  the  plaintiff.  If  he  has  clone  it  fairly, 
temperately  and  calmly,  then  he  is  not  a  fit  subject  for  an 
action  for  libel." 1  "  Every  individual  has  a  right  to 
comment  on  those  acts  of  public  men  which  concern  him 
as  a  subject  of  the  realm,  if  he  do  not  make  his  com- 
mentary a  cloak  for  malice  and  slander.  There  is  indeed, 
a  material  distinction  between  publications  relating  to 
public  and  to  private  persons,  as  regards  the  question 
whether  they  be  libellous.  That  criticism  may  reasonably 
be  applied  to  a  public  man  in  a  public  capacity,  which 
might  not  be  applied  to  a  private  individual."  2  The  first 
sentence  in  this  last  quotation  refers  to  acts,  and  is  correct ; 
and  although  the  remarks  in  the  subsequent  sentences 
profess  to  apply  to  persons,  yet  they  can  be  regarded  as 
stating  the  law  correctly  only  by  limiting  them  to  the 
acts  of  public  men.  Apart  from  the  obsolete  statutes  of 
scandalum  magnatum  there  is  no  distinction  of  persons, 
nor  any  division  of  persons  into  public  and  private  (§181). 

§  259.  The  supposed  distinction  between  matters  of 
fact  and  matters  of  opinion,  is  sometimes  referred  to  as 
marking  the  difference  between  justifiable  or  unjustifiable 
comment  or  criticism.  Criticism,  it  is  said,  is  matter  of 
opinion;  and  that  while  all  expression  of  opinion  is 
justifiable,  a  statement  of  fact  is  not  justifiable,  unless  on 
the  ground  of  truth.3  This  view  is  unsound.  In  one 
sense  it  is  merely  the  expression  of  an  opinion  to  say  of  a 
minister  he  entered  the  pulpit  in  a  towering  passion ;  but 
such  an  assertion  cannot  be  justified  as  criticism.4 

§  260.  Stress  is  sometimes  laid  upon  the  fact  that  the 
criticism  is  upon  a  public  act,  implying  that  it  is  the 
publicity  of  the  act   upon   which  the   right  of  comment 


2  Bramwell,  B.,  Kelly  v.  Sherlock,  Law  Rep.  I.  689,  Q.  B. 

9  Parmiter  v.  Cropland,  6  M.  &  W.  108. 

8  See  Popham  v.  Pickburn,  1  Hurl.  &  Nor.  891 ;  ante,  §§  163,  241  and  note  1,  p.  219. 

*  Walker  v.  Brogden,  19  C.  B.  N.  S.  64. 


454  DEFEASES. 

depends.  We  shall  not  attempt  to  distinguish  between 
public  and  private  acts,  because  we  are  of  the  opinion  that 
it  cannot  directly  make  any  difference  in  the  right  to 
criticise,  whether  the  act  be  done  privately  or  publicly. 
It  was  this  supposed  distinction  between  public  and 
private  acts,  which  occasioned  the  dubiety  on  the  question 
whether  a  sermon,  not  otherwise  published  than  by  its 
delivery  from  the  pulpit,  by  a  minister  to  his  congregation, 
was  the  subject  of  criticism.1  A  churchwarden  having 
written  to  the  plaintiff,  the  incumbent,  accusing  him  of 
having  desecrated  the  church,  by  allowing  books  to  be 
sold  in  it  during  the  service,  and  by  turning  the  vestry 
room  into  a  cooking  apartment,  the  correspondence  was 
published  without  the  permission  of  the  plaintiff,  in  the 
defendant's  newspaper,  with  comments  on  the  plaintiff's 
conduct.  Held,  that  the  correspondence  involved  a  sub- 
ject of  public  interest,  which  might  be  made  the  subject 
of  public  discussion,  and  the  publication  of  the  correspon- 
dence was  not  actionable,  unless  the  lan^ua^e  used  was 
stronger  than  the  limits  of  fair  criticism  allow.2  Upon 
principle,  private  acts  are,  equally  with  public  acts,  the 
subjects  of  criticism.  But  whether  the  act  be  a  public  or 
a  private  act,  may  make  a  difference  in  determining 
whether  the  criticism  was  in  good  faith. 


'Gathercole  v.  Miall,  15  M.  &  W.  319;  10  Jurist,  337;  7  Law  Times,  89;  15  Law 
Jour.  Rep.  179,  Ex.  In  the  same  case  it  was  held  that  the  conduct  of  the  vicar  of  a 
parish,  in  establishing  a  parochial  institution  for  charitable  purposes,  by  the  rules  of 
which  all  persons  not  members  of  the  Church  of  England  are  excluded  from  the 
benefit  of  the  charity,  is  not  a  public  act  or  the  act  of  a  public  functionary,  so  as  to 
entitle  the  public  press  or  others  to  comment  on  it  as  such.  A  plea  of  fair  comment, 
that  the  plaintiff's  dealings  with  his  tenants  was  a  matter  of  public  notoriety,  and 
had  formed  the  subject  of  a  letter  written  to  plaintiff  on  behalf  of  the  tenantry  by 
the  parish  priest ;  and  that  the  whole  subject  of  the  law  of  landlord  and  tenant  was 
a  matter  of  public  interest  and  discussion,  held  that  the  plea  stated  no  defense  and 
leave  to  plead  it  was  denied.     (Hogan  v.  Sutton,  16  Weekly  Rep.  127.) 

*  Kelly  v.  Tiding,  Law  Rep.  I.  699,  Q.  B. 


CHAPTER  X. 

COEPOEATIOXS. 

Corporations  are  legal  persons — Their  rights  and  duties 
assimilated  to  those  of  natural  persons — Can  act  only 
through  agents — May  carry  on  business,  sue  and  he  sued, 
and  are  liable  for  injuries  committed  by  agents — Corpor- 
ations may  have  a  reputation — Language  concerning 
corporations — Actions  by  corporations  for  libel — Corpor- 
ations cannot  be  guilty  of  slander — May  be  guilty  of 
libel. 

§  261.  Corporations,  whether  aggregate  or  sole,  are 
legal  persons.  Hitherto,  attention  has  been  directed 
exclusively  to  language  published  by  or  which  concerned 
natural  persons  or  their  affairs ;  it  will  now  be  in  order 
to  consider  the  rights  and  duties  of  legal  persons  or 
corporations  in  respect  to  the  publication  of  language. 
The  topic  has  been  comparatively  but  little  adjudicated, 
and  to  the  decisions  upon  it  the  remarks  contained  in  a 
former  section  (§15)  appear  peculiarly  applicable.  The 
great  and  ever  increasing  number  of  corporations,  assuming 
all  the  functions  of  individuals,  has  created  a  tendency  in 
the  modern  decisions  to  assimilate,  so  far  as  possible,  the 
rights  and  duties  of  corporations  to  the  rights  and  duties 
of  natural  persons.1  It  is  the  distinctive  feature  of  a 
corporation  that  it  can  only  act  by  or  through  its  officers 
or  agents ; 2  for  even  in  the  case  of  a  corporation  sole,  the 

1  Conro  v.  Port  Henry  Iron  Co.,  12  Barb.  28. 

2  First  Baptist  Church  v.  Brooklyn  Fire  Ins.  Co.,  18  Barb.  69;  Story  on  Agency, 
§10. 


456  CORPORATION'S.  [Ch.  X. 

individual  who  represents  that  corporation,  and  the  cor- 
poration, are  distinct  entities.  Ordinarily,  a  corporation 
may  acquire  and  possess  property,  and  carry  on  business, 
and  it  may  sue  and  be  sued  in  like  manner  as  an  indivi- 
dual,1 and  is  liable  for  an  injury  committed  by  its  servants 
or  agents,  in  all  cases  where,  under  like  circumstances,  an 
individual  would  be  liable.2  Accordingly,  it  has  been  held 
that  an  action  lies  against  a  corporation  for  malicious 
prosecution  or  for  a  trespass,8  or  for  a  libel.4 

§  262.  A  corporation,  like  an  individual,  may  have  a 
reputation,  and  a  good  reputation  is  equally  as  valuable 
to  a  corporation  as  to  a  natural  person;5  and  as  an  in- 
dividual may  sustain  injury  by  language  affecting  his 
reputation,  so  in  like  manner  may  a  corporation.  As  in 
regard  to  language  affecting  individuals,  we  distinguish 
between   language   concerning   the   person   as  such,  and 

1  The  Constitution  of  the  State  of  New  York  provides,  (Art.  8  §  3.)  All  corpora- 
tions shall  have  the  right  to  sue,  and  shall  be  subject  to  be  sued  in  all  courts,  in  like 
cases  as  natural  persons. 

2  First  Baptist  Church  in  Schen.  ?/.  Schen.  &  Troy  R.  R.  Co.,  5  Barb.  80,  and  see 
Pritchard  v.  Corporation  of  Georgetown,  2  Cranch  Cir.  Ct.  191 ;  Watson  v.  Bennett, 
12  Barb.  196;  New  Haven  R.  R.  Co.  v.  Schuyler,  34  N.  Y.  30,208;  Hunter  v. 
Hudson  River  R.  R.  Co.,  20  Barb.  507 ;  Sharp  v.  Mayor  of  New  York,  40  Barb.  273  ; 
Rochester  White  Lead  Co.  v.  City  of  Rochester,  3  N.  Y.  468 ;  Green  v.  London 
Omnibus  Co.,  6  Jurist,  N.  S.  228  ;  see  ante,  §  123. 

s  Eastern  Counties  Railway  v.  Brown,  6  Ex.  314;  Roe  v.  Birkenhead  Railway 
Co.,  7  Ex.  36;  Goodspeed  v.  East  Haddam  Bank,  22  Conn.  530;  McFadzen  v.  Mayor 
of  Liverpool,  Law  Rep.  III.  Ex.  279.  In  Owsley  v.  Montgomery  &c.  R.  R.  Co., 
in  Alabama,  it  was  held,  but  as  we  conceive  erroneously,  that  a  corporation, 
although  liable  for  false  imprisonment,  was  not  liable  for  malicious  prosecution  ;  and 
in  Childs  v.  State  B'k  of  Mo.,  2  Ben.  213,  it  was  held  that  neither  an  action  for 
malicious  prosecution,  for  slander,  nor  for  false  imprisonment,  could  be  maintained 
against  a  corporation;  and  see  Stevens  v.  Midland  Counties  R'way,  10  Ex.  355. 

4  Phil.  R.  R.  Co.  v.  Quigley,  21  How.  U.  S.  R.  202 ;  Aldrich  v.  Printing  Press  Co. 
9  Min.  133 ;  Lawless  v.  Anglo  Egyptian  Cotton  Co.,  Law  Rep.  IV.  Q.  B.  262 ; 
Maynard  v.  Firemans  Ins.  Co.,  34  Cal.  48;  Latimer  v.  West.  Morn.  News  Co.  25  Law 
Times,  N.  S.  44.  In  New  York  by  statute  (Laws  1860,  ch.  90),  a  married  woman 
may  maintain  an  action  in  her  own  name,  against  any  "body  corporate,"  for  any 
injury  to  her  person  or  character,  the  same  as  if  she  were  sole. 

6  Trenton  Ins.  Co.  v.  Perrine,  3  Zab.  402. 


§§  263-64.]  corporations.  457 

language  concerning  the  person  in  a  trade,  and  language 
concerning  a  thing  or  the  affairs  of  a  person ;  so  in  regard 
to  language  affecting  corporations,  we  must  distinguish 
between  language  concerning  a  corporation  for  different 
objects,  as  those  engaged  in  manufacturing,  trading, 
or  banking,  and  those  not  so  enowed,  and  lamma^e  con- 
cerning  the  things  of  a  corporation.  Of  course  language 
concerning  the  corporators  is  not  within  the  limits  of  our 
present  inquiry.  Where  the  defendant  published,  with 
other  defamatory  matter,  that  his  hat  had  been  stolen  by 
so?ne  of  the  members  of  No.  12  Hose  Company.  The 
Hose  Company  was  a  volunteer  association,  and  the 
members  of  the  Association  brought  a  joint  action  for 
this  publication  ;  held,  that  the  action  could  not  be 
maintained.1 

§  263.  Language  concerning  a  corporation  not  engaged 
in  any  business,  can  hardly  occasion,  and  certainly  does 
not  necessarily  occasion  it  any  pecuniary  injury;  therefore, 
in  regard  to  language  concerning  such  a  corporation,  no 
action  can  be  maintained  except  upon  j^roof  of  special 
damage;  but  as  regards  a  corporation  engaged  in  manu- 
facturing, trading  or  banking,  or  other  occupation  in 
which  credit  may  be  material  to  its  success,  there  language 
concerning  such  a  corporation  calculated  to  injuriously  affect 
its  credit,  must  necessarily  occasion  it  pecuniary  injury, 
and  in  such  a  case  an  action  may  be  maintained  by  the 
corporation  without  proof  of  any  special  damage.  Thus 
as  regards  language  concerning  corporations,  some  is 
actional )\q  per  se,  and  some  is  actionable  only  by  reason  of 
special  damage. 

§  264.  In  the  case  of  an   action  by  a  corporation,  a 
mutual   life   insurance   company,  against    the  editor  of  a 

1  Giraud  v.  Beach,  3  E.  D.  Smith,  337. 
30 


458  CORPORATIONS.  [Cll.  X. 

newspaper,  for  libel  in  charging  that  the  affairs  of  the 
company  were  mismanaged,  it  was  alleged  that  the  words 
were  published  of  and  concerning  the  company  in  their 
business,  and  of  and  concerning  the  directors  of  the  com- 
pany, and  of  and  concerning  the  president,  vice-president 
and  secretary  of  the  company,  and  of  and  concerning  the 
property  and  concerns  of  the  company,  and  of  and  con- 
cerning the  conduct  and  management  of  the  property  and 
concerns  of  the  company  by  the  aforesaid  directors  and 
officers  of  the  company ;  and  special  damage  was  charged 
to  have  resulted  to  the  company  in  a  loss  of  its  business, 
and  a  diminution  of  its  profits.  On  demurrer  to  the  com- 
plaint, it  was  held  that  "a  corporation  aggregate  may 
maintain  an  action  for  a  libel  for  words  published  of  them 
concerning  their  trade  or  business,  by  which  they  have 
suffered  special  damage."  And  that,  "  in  alleging  special 
damage,  it  is  not  always  necessary  to  name  the  customers 
whose  business  has  been  lost  by  the  defamation ;  but  if 
the  nature  of  the  business  is  such  as  to  render  that 
impracticable,  the  loss  of  the  business  may  be  alleged 
generally."  1  In  another  case  it  was  held  that  a  joint  stock 
company,  incorporated  under  the  statute  19  and  20  Vict., 
ch.  47,  might  maintain  an  action  for  libel,  and  that,  too, 
against  a  shareholder  in  the  company.2  And  in  that  case 
it  was  said  there  may  be  particular  kinds  of  libel  which 
do  not  effect  a  corporation,  but  if  injury  ensues  an  action 
may  be  maintained.  Where  the  defendant  published  in 
a  periodical,  that  the  plaintiff",  an  incorporated  bank, 
"  was  liable  at  any  time  to  be  closed  up  by  an  injunction," 
the  plaintiff  brought  an  action  for  libel,  alleging  that  since 
the  publication  divers  persons  had  refused  to  receive  the 
notes  of  the  plaintiff,  and  had  refused  to  deal  with  it. 
To  this  complaint  there  was  a  demurrer;  the  demurrer 


2  Trenton  Ins.  Co.  v.  Perrine,  3  Zab.  402. 

2  Metropolitan  Saloon  Omnibus  Co.  v.  Hawkins,  4  Hur1.  &  Kbr.  87. 


§  265.]  corporations.  459 

was  overruled,  and  it  was  held  that  a  good  cause  of  action 
was  alleged  without  any  allegation  of  special  damages 
that  the  law  recognized  the  rights  of  a  corporation  to  its 
property  as  effectually  as  in  the  case  of  an  individual. 
An  appeal  was  taken  to  the  general  term,  where  the 
decision  was  affirmed.1  "Where  an  act  of  Parliament,  after 
reciting  the  difficulties  experienced  by  joint-stock  com- 
panies in  suits  for  recovering  debts  and  enforcing  obliga- 
tions, and  in  the  prosecution  of  offenders,  enacted  that 
actions  commenced  by  the  Hope  Company  for  recovering 
debts,  enforcing  claims  or  demands  then  due,  or  which 
thereafter  might  become  due  or  arise  to  the  company, 
niicdit  be  commenced,  and  indictments  for  offenses  be 
preferred,  in  the  name  of  the  chairman.  Held,  that  the 
chairman  might  sue  for  a  libel  on  the  company,  although 
it  was  not  a  corporate  body.2 

§  265.  As  a  corporation  can  act  only  by  or  through 
its  officers  or  agents  (§  261),  and  as  there  can  be  no 
agency  to  slander  (§  67), 3  it  follows  that  a  corporation 
cannot  be  guilty  of  slander ;  it  has  not  the  capacity  for 
committing  that  wrong.  If  an  officer  or  an  agent  of  a 
corporation  is  guilty  of  slander,  he  is  personally  liable, 
and  no  liabilty  results  to  the  corporation.  But  as  all 
concurring  in  the  authorship  or  publications  of  a  libel 
are  alike  responsible  as  publishers  (§§  115, 117,  and  note 
3,  p.  148),  there  is  nothing  to  prevent  a  corporation  from 
being,  in  law,  the  publisher  of  a  libel,  and  from  being  held 
liable  as  such  publisher.  A  corporation  may  sanction  the 
publication  of  a  libel,  and,  in  such  a  case,  the  corporation 
is  the  publisher  of  the  libel,   and  liable  in  like  manner  as 

1  Shoe  and  Leather  B'k  v.  Thompson,  18  Abb.  Pra.  R.  413. 

2  Williams  v.  Beaumont,  10  Bing.  200;  3  M.  <fe  Sc.  705;  and  see  Woodward  v. 
Cotton,  1  Cr.  M.  <fc  R.  44. 

3  Moloney  v.  Bartley,  3   Camp.    210;  Flecker  v,  DeGroot,  15   How.  Pra.  R.  314; 

and  note  1,  p.  Ill,  ante. 


460  CORPORATIONS. 

an  individual;  not  because,  as  is  sometimes  said,  a  cor- 
poration may  act  with  malice,  but  because  it  has  a  capacity 
for  voluntary  action,  and  is  responsible  for  such  action. 
It  is  as  possible  for  a  corporation  as  for  an  individual  to  act 
maliciously,  *.  e.  with  a  bad  intent.  Accordingly  it  has 
been  held,  that  a  corporation  aggregate  may  well,  in  its 
corporate  capacity,  cause  the  publication  of  a  defamatory 
statement  under  such  circumstances  as  would  imply  malice, 
in  law,  sufficient  to  support  the  action  ;  and  there  may  be 
circumstances  by  which  express  malice  in  fact  might  be 
proved,  such  as  to  make  a  corporation  aggregate  liable 
therefor  in  its  corporate  capacity.1 


1  Whitfield  v.  South-East.  R.  R.  Co.  1  Ell.  B.  &  E.  115 ;  Aldrich  v.  Press  Printing 
Co.,  9  Min.  133 ;  Alexander  v.  K  East.  R.  R.  Co.,  34  Law  Jour.  Rep.  N.  S.  152;  Q. 
B. ;  11  Jurist,  N.  S.  619.  Exemplary  damages  against  a  corporation.  (Jefferson 
R.  R.  v.  Rogers,  2S  Ind.  1.) 


PAET    II. 


REMEDY    BY    ACTION 


FOR    THE    WRONGS   CALLED 


SLANDER   AND   LIBEL. 


CHAPTER  XL 

PKOCEEDINGS   IN   AN    ACTION. 

Action,  how  commenced — Within  what  time — In  what 
court — Attachment — Holding  defendant  to  bail — Exe- 
cution against  the  person — Security  for  costs — Con- 
solidating action — Place  of  trial — Inspection  and  dis- 
covery— Assessment  of  damages  xohere  no  ansiver  inter- 
posed— Mode  of  trial — Struck  jury — Refusing  to  try — 
Compromise — Right  to  begin — Address  of  counsel — 
Reading  libel  to  jury — Evidence  for  plaintiff — Aban- 
donment of  one  of  several  causes  of  action  or  defense — 
Province  of  the  court  and  jury — Damages —  Verdict — 
New  trial — Costs — Staying  proceedings  until  costs  of 
former  action  paid. 

§  266.  The  preceding  chapters  of  this  essay  have  been 
devoted  to  a  consideration  of  the  law  relating  to  the 
wrongs  called  slander  and  libel.  We  have  now  to  treat 
of  the  remedy  by  action  for  these  wrongs.  The  diversity 
of  the  procedure  in  the  courts  of  the  several  States,  ren- 
ders it  impossible  to  compress  within  any  convenient 
space,  or  into  any  convenient  form,  the  practice,  pleadings, 
and  proceedings  in  actions  in  all  the  States.  To  trace  in 
detail  the  whole  proceedings  in  an  action  in  any  one  State, 
would  be  to  exceed  the  limits  of  our  subject.  We  pur- 
pose, therefore,  to  exhibit  so  much  of  the  course  of  pro- 
cedure in  an  action  in  the  courts  of  the  State  of  New 
York,  as  applies  either  exclusively  to  the  action  of  slander 
or  libel,  or  as  may  have  been  adjudicated  upon.  Our  re- 
marks, while  they  will  more  particularly  refer  to  the  State 
of  New  York,  will  occasionally  extend  to  other  States  and 
to  the  practice  in  the  courts  of  England.     As  the  Code  of 


4G4  PROCEEDINGS    IX   AN   ACTION-.  [Ch.  XI. 

Procedure  of  the  State  of  New  York  lias  been  the  model 
for  the  Codes  of  Procedui'e  of  other  States,  references  to 
the  Code  of  Xew  York  will  have  a  wide  field  of.  practical 
utility.  The  topics  of  Parties,  Pleading,  and  Evidence 
will  be  considered  in  subsequent  chapters. 

§  267.  The  action  for  slander  or  libel  is  commenced 
by  summons,  in  the  form  known  as  a  summons  for  relief. 
The  summons  may  be  served  by  publication.1  The  action 
must,  with  certain  exceptions,  be  commenced  within  two 
years  of  the  time  of  the  publication,  and  within  the  life- 
time of  the  person  affected  by  the  defamatory  matter ; 2  it 
cannot  be  brought  in  a  court  of  a  justice  of  the  peace.8  It 
may  be  brought  in  the  Marine  Court  of  the  City  of 
New  York,  if  the  damages  claimed  do  not  exceed  $500. 
And  in  cases  which  might  be  brought  in  the  Marine 
Court,  if  the  action  is  brought  in  any  other  court,  the 
plaintiff  can  recover  only  Marine  Court  costs.4  The 
plaintiff  in  an  action  for  slander  or  libel  cannot  issue  an 
attachment  against  the  property  of  the  defendant,5  but  the 
defendant,  whether  male  or  female,  may  be  arrested  and 
held  to  bail  at  the  commencement  of  the  action,  or  at  any 
time  before  judgment  therein ; 6  and-  after  the  return  un- 

1  Code  of  Pro.,  §  135;  see  Waterhouse  v.  Hatfield,  9  Ir.  L.  R.  38. 

a  Code  of  Pro.,  §  93;  see  post.  Parties.  In  some  cases  in  England,  the  plaintiff 
must  give  notice  of  action.  (See  Norris  v.  Smith,  10  A.  <fc  E.  190;  BeecheyV.  Sides, 
9  B.  &  C.  80G ;  Lidster  v.  Borrow,  9  A.  &  E.  654.) 

3  Code  of  Pro.,  §  54.  Actions  for  libel  and  slander  are  excepted  from  the  juris- 
diction of  the  County  Courts  in  England,  9  and  10  Vict,  ch.  95  ;  12  and  13  Vict.,  ch. 
101 ;  13  and  14  Vict.,  ch.  61 ;  15  and  16  Vict.,  ch.  54. 

4  Laws  of  X.  Y.  1853,  p.  1165;  Murray  v.  De  Gross,  3  Duer,  668.  Any  court  of 
record  in  the  city  of  New  York  may  send  any  action  of  libel  or  slander  pending  in 
said  court  and  at  issue,  to  the  Marine  Court  for  trial.  (See  Laws  1871,  p.  1817;  Laws 
1870,  p.  1346.) 

6  And  so  in  So.  Carolina,  Sargent  v.  Helmbold,  Harper,  219. 

6  Code  of  Pro.,  §§  179,  183.  In  England  the  holding  to  bail  in  an  action  for  libel 
is  of  very  rare  occurrence.  (Folkard,  Stark.  Slan.  548.)  In  New  York  city,  the 
practice  of  holding  to  bail  in  actions  for  libel  or  slander  is  now  discouraged  by  the 
courts.  (See  Knickerbocker  Ins.  Co.  v.  Ecclesine,  6  Abb.  Pra.  Rep.  X.  S.  9 ;  Butta 
v.  Burnett,  id.  302.) 


§  2G8.]  PROCEEDINGS    EN-    AN   ACTION.  4i;.J 

satisfied  of  an  execution  against  the  property  of  the  de- 
fendant, an  execution  may  issue  against  his  person,  even 
in  the  case  of  an  infant  defendant.2  A  married  woman 
sued  with  her  husband  may  be  held  to  bail.2  If  the 
plaintiff  fails  in  the  action,  a  judgment  against  him  for  the 
costs  may,  after  an  execution  against  his  property  has 
been  returned  unsatisfied,  be  enforced  by  an  execution 
against  his  person. 4  The  plaintiff  may  be  required  to 
give  security  for  costs,  as  in  other  actions.5  Actions  for 
slander  or  libel  may  be  consolidated.6 

§  268.  The  actions  of  slander  and  libel  are  of  the  kind 
known   as  transitory?     The  place   of  trial   (the   venue) 

1  Code  of  Pro.,  §§  179,  288;  see  Baker  v.  Swackhamer,  5  How.  Pra.  Rep.  251 ; 
Straus  v.  Schwarzwaelden,  4  Bosw.  627;  Brooks  v.  McLellan,  1  Barb.  627;  Davis  v. 
Scot,  15  Abb.  Pra.  Rep.  127;  Pearson  v.  Picket,  1  McCord,  472;  Newton  v.  Rowe,  S 
Sc.  X  R.  26 ;  Defries  v.  Davies,  3  Dowl.  Pra.  Cas.  629.  A  defendant  in  custody  on 
an  execution  for  damages  in  slander  or  libel,  is  not  discharged  therefrom  by  the 
English  bankrupt  law ;  see  1  Doria  &  McCreas'  Law  of  Bankruptcy,  349.  Queiy  as 
to  the  United  States  Bankrupt  Law. 

8  Defines  v.  Davies,  3  Dowl.  629.  The  defendant  in  an  action  for  slander,  aged  15 
years,  was  taken  in  execution  for  the  damages  and  costs,  and  the  court  refused  to  re- 
lease him.     (/</.) 

3  Schaus  v.  Putscher,  25  How.  Pra.  Rep.  436. 

4  Kloppenburg  v.  Neefus,  4  Sandf.  655. 

6  Court  refused  to  increase  amount  of  security  to  cover  expenses  of  foreign  wit- 
nesses. (Pizani  v.  Lawson,  5  Sc.  418.)  By  statute  30  and  31  Vict.  ch.  142,  §  10,  it 
is  enacted  that  in  actions  of  malicious  prosecution,  *  *  *  *  slander,  seduction, 
or  other  action  of  tort  brought  in  a  superior  court,  the  plaintiff  may  be  required  to 
give  security  for  costs,  or  satisfy  a  judge  that  he  has  a  cause  of  action,  otherwise  the 
action  is  to  be  remitted  to  the  county  court 

0  See  an  instance,  Whitely  v.  Adams,  15  C.  B.  N.  S.  392  ;  10  Jurist,  N.  S.  47.  The 
court  refused  to  consolidate  actions  for  the  same  libel,  one  against  the  publisher  and 
the  other  against  the  editor  of  the  newspaper  in  which  the  libel  was  published. 
(Cooper  v.  Weed,  2  How.  Pra.  Rep.  40.)  Where  A  and  P.  having  recovered  in 
separate  actions  against  different  parties  engaged  in  the  publication  of  the  newspaper 
in  which  the  libel  was  published,  commenced  other  actions  against  the  same  parties, 
each  suing  the  party  against  whom  the  other  had  recovered,  the  court,  on  motion 
refused  to  stay  the  proceedings  in  the  second  actions.  (Martin  >•.  Kennedy;  Banning 
v.  Perry,  2  Bos.  &  Pul.  69.  See  Jones  v.  Pritchard,  6  Dowl.  &  L.  529 ;  18  Law  Jour. 
101,  Q.  B.) 

7  Hull  v.  Vrecland,  42  Barb.  543  ;  Owen  v.  McKean,  14  111.  459  ;  Teagle  v.  Deboy, 
8  Blackf.  134 ;  and  see  Wickham  v.  Baker,  4  Blackf.  517,  ante,  §  110,  and  note,  p.  145. 


466  PROCEEDINGS    IN   AN   ACTION.  [Ch.  XI. 

should  he  the  county  in  which  the  parties,  or  some  of 
them,  reside ;  or  if  none  of  the  parties  reside  in  the  State, 
then  in  any  county  the  plaintiff  may  designate,1  subject  in 
every  case  to  the  power  of  the  court  to  change  the  place 
of  trial.2 

§  269.  In  certain  cases,  either  party  is  entitled  to  the 
production  and  inspection  of  documents  in  the  possession 
or  control  of  his  adversary.3  Where,  in  an  action  for  a 
libel,  the  plaintiff  moved  for  an  order  upon  the  defendant 
to  deliver  to  him  a  copy  of  a  printed  book  in  his,  defend- 
ant's, possession,  in  order  to  enable  him,  plaintiff,  to  pre- 
pare his  complaint  in  the  action,  per  curiam :  Without  ex- 
pressing any  opinion  as  to  the  propriety  of  compelling  a 
defendant,  in  an  action  for  a  libel,  to  deliver  to  the 
plaintiff  a  copy  of  the  libel,  I  am  clearly  of  the  opinion 
that  this  motion  should  not  be  granted,  because :  1.  The 


1  Code  of  Pro.,  §  125.  Formerly  it  was  a  ground  for  arresting  or  setting  aside 
the  judgment  if  the  venue  was  laid  in  the  wrong  county.  This  was  altered  by  the 
statutes  16  and  17  Car.  2,  ch.  8;  4  Anne,  ch.  16;  Clerk  v.  James,  Cro.Eliz.  870;  Craft 
v.  Eoite,  1  Saund.  241. 

5  Code  of  Pro.,  §  126.  As  to  changing  venue,  see  Phillips  v.  Chapman,  5  Dowl. 
Pr.  Cas.  250 ;  Ryder  v.  Burke,  10  Ir.  Law.  Rep.  476  ;  Robson  v.  Blackman,  2  Dowl. 
645  ;  Clements  v.  Newcombe,  1  Cr.  M.  &  R.  776 ;  3  Dowl.  Pr.  Cas.  425 ;  Pybus  ». 
Scudamore,  7  Sc.  124;  Hobart  v.  Wilkins,  1  Dowl.  460;  Wheatcroft  v.  Mouseley,  11 
C.  B.  677;  Pinckney  v.  Collins,  1  T.  R.  571 ;  Clissold  v.  Clissold,  1  T.  R.  647;  Met- 
calf  v.  Markham,  3  T.  R.  652;  Barnes  v.  Holloway,  8  T.  R.  150;  Hitchon  v.  Best,  1  B. 
&  P.  299;  Lucan  v.  Cavendish,  10  Ir.  Law  Rep.  536;  Callagher  v.  Cavendish,  3  Ir. 
Law  Rep.  375  ;  Root  v.  King,  4  Cow.  403 ;  Shaftsbury's  case,  1  Vent.  364  ;  Greenslade 
v.  Ross,  3  Dowl.  Pra.  Cas.  697 ;  Tallent  v.  Morton,  1  M.  &  P.  188. 

Where  the  application  is  on  special  grounds,  it  should  not  be  made  until  after 
issue  joined.  (Hodge  v.  Churchyard,  5  C.  B.  495  ;  Griffin  v.  Walker,  7  Sc.  846.) 
The  venue  changed  after  a  nonsuit  (Price's  note3,  P.  of  Pr.  177).  It  was  held 
no  ground  for  changing  the  venue  in  an  action  for  libel  published  in  a  local  news- 
paper, that  the  defendant,  the  proprietor  of  the  paper,  possessed  much  influence 
in  the  county  in  which  the  venue  was  laid,  and  had,  since  the  commencement 
of  the  action,  evinced  a  disposition  to  use  it  to  the  prejudice  of  the  plaintiff.  But  the 
court  intimated  that  they  would  interfere  if  the  defendant  should  before  the  trial 
publish  anything  in  relation  to  the  matter  of  the  action  reflecting  upon  the  plaintiff. 
(Walker  v.  Brodgen,  17  C.  B.  N.  S.  571.) 

3  Code  of  Pro.,  §  388  ;  2  Rev.  Stat,  of  N.  Y.  199 ;  Court  Rule  14.  And  under  the 
English  Common  Law  Procedure  Act.     (Collins  v.  Yates,  27  Law  Jour.  150,  Ex.) 


§  270.]  PROCEEDINGS   LN    AN    ACTION.  467 

affidavits  do  not  show  what  is  stated  in  the  book  of  which 
the  plaintiff  seeks  a  discovery,  and  therefore  the  court 
cannot  decide  whether  it  is  material  or  not.  2.  Because 
the  affidavits  do  not  specify  any  particular  information 
desired,  so  that  the  court  could  order  a  sworn  copy  to  be 
delivered.  3.  Because  plaintiff  is  not  entitled  to  the  whole 
book,  but  only  to  the  particular  article  on  which  his  action 
is  founded.1  Upon  an  application  in  an  action  for  libel, 
for  leave  to  examine  a  defendant  before  service  of  any 
complaint,  the  court  much  doubted  the  propriety  of  exer- 
cising the  power  of  the  court  to  enable  the  plaintiff  to  ob- 
tain facts  upon  which  to  frame  his  complaint.2  And  in 
an  action  ag-ainst  certain  individuals  named,  and  certain 
others  not  named  (except  by  fictitious  names),  for  a  libel 
in  a  newspaper  of  which  the  defendants  named,  with  the 
others  not  named,  were  alleged  to  be  the  proprietors,  the 
plaintiff  alleged  that  the  names  of  the  proprietors  were 
unknown  to  him,  and  that  it  was  pretended  that  the 
newspaper  was  the  property  of  a  corporation,  and  asked 
for  an  inspection  of  the  books  of  such  corporation  to  en- 
able him  to  ascertain  the  true  names  of  the  proprietors  of 
the  newspaper.     The  application  was  denied.3 

§  270.  In  England  a  bill  of  discovery  is  allowed  in 
certain  cases  in  an  action  for  libel,4  and  interrogatories 
may  be  exhibited  to  ascertain  the  precise  words  used,5  but 

1  Lynch  v.  Henderson,  10  Abb.  Pra.  R.  345,  note. 
3  Keeler  v.  Dusenbury,  1  Duer,  661. 

3  Opdyke  v.  Marble,  44  Barb.  64. 

4  By  statute  6  4  7  W.  IV,  cb,  76,  §  19,  authority  is  given  to  file  a  bill  of  discov- 
ery of  the  name  of  any  person  concerned  as  printer,  publisher,  or  proprietor  of  any 
newspaper,  or  of  any  matters  relative  to  the  printing  or  publishing  of  any  newspaper 
in  order  to  bring  or  carry  on  any  suit  for  libel.  As  to  a  bill  of  discovery  in  aid  of  an 
action  for  libel,  see  Macauley  v.  Shackell,  1  Bli.  N.  S.  96;  2  Sim.  &  St.  79;  Wilmot 
v.  McCabe,  4  Sim.  263;  March  v.  Davison,  9  Paige,  580;  Stat.  32  George  III,  ch.  60; 
Stewart  v.  Nugent,  12  Legal  Observer  (London),  210. 

6  Atkinson  v.  Fosbrook,  Law  Rep.  1,  628,  Q.  B. ;  14  Law  Times,  N.  S.  553;  17  & 
18  Vict.  ch.  125 ;  32  &  33  Vict.  ch.  24. 


468  PROCEEDINGS    IN    AN   ACTION.  [Cll.  XL 

the  court  refused  to  permit  a  plaintiff  to  exhibit  interroga- 
tories to  the  defendant,  the  answers  to  which,  if  in  the 
affirmative,  would  tend  to  show  that  he  composed  or  pub- 
lished the  libel,  and  would  therefore  criminate  him.1  In 
an  action  for  imputing  to  the  plaintiff  that  he  was  the 
author  of  a  scandalous  letter,  which  the  defendant  in  his 
plea  justified  as  true,  the  court  allowed  the  plaintiff  an 
inspection  of  the  letter  by  certain  witnesses,  in  order  that 
he  might  be  prepared  to  negative  its  being  his  hand- 
writing.2 

§  271.  In  one  case,3  in  an  action  for  libel,  the  court 
ordered  the  defendant  "to  produce  certain  documents  in 
his  possession  for  the  inspection  of  the  plaintiff.  This  was 
disapproved  of  in  a  subsequent  case,4  where  an  application 
for  an  order  to  inspect  the  manuscript  of  articles  that  had 
been  published  in  a  newspaper  was  denied.  A  motion  to 
compel  the  defendants  to  declare  to  whom  the  defamatory 
matter  was  intended  to  apply  was  denied.5 

§  272.  On  the  principle  that  before  a  party  utters  a 
slander  he  should  be  prepared  to  justify,  it  has  been  said 
that  the  courts  will  not  give  the  defendant  an  inspection 
of  documents  in  the  possession  of  the  plaintiff  to  enable 
the  defendant  to  prepare  a  plea  in  justification ;  thus 
where  A.  charged  B.  with  forging  an  I  O  TJ,  and  B  sued 

1  Tupling  v.  Ward,  6  Hurl.  <fc  Nor.  "749  ;  Edmunds  v.  Greenwood,  Law  Rep.  IV, 
C.  P.  70;  but  see  Baker  v.  Lane,  3  Hurl.  &  Colt.  544  ;  34  Law  Jour.  N.  S.  57,  Ex.; 
10  Jurist,  N.  S.  117;  11  Law  Times,  N.  S.  38,  as  explained  in  Beckford  v.  D'Arcy, 
Law  Rep.  1,  354,  Ex.;  14  Law  Times,  N.  S.  629;  see  also  Stern  v.  Sevastopulo,  14 
C.  B.  N.  S.  737;  Moor  v.  Roberts,  2  C.  B.  N.  S.  671 ;  Bartlett  v.  Lewis,  12  C.  B.  N.  S. 
249.  Publisher  may  refuse  to  answer  interrogatories  (Bowden  v.  Allen,  22  Law  Times, 
N.  S.  342;  39  Law  Jour.  217,  C.  P.)  When  court  will  not  review  order  allowing  an 
interrogatory  (Inman  v.  Jenkins,  39  Law  Jour.  258,  C.  P.);  and  as  to  interrogatories 
see  Osborne  v.  London  Dock  Co.,  10  Ex.  698;  Chester  v.  Wortley,  17  C  B.  410. 

3  Curtis  v.  Curtis,  3  M.  &  Sc.  819. 

3  Perrott  v.  Morris,  8  Irish  Jurist,  334. 

4  Findlay  v.  Lindsay,  7  Irish  Com.  Law  Rep.  1. 
6  Giraud  v.  Beach,  3  E.  D.  Smith,  337. 


§  273.]  PROCEEDINGS   IN   AN   ACTION.  469 

A.  in  slander  for  uttering  such  charge,  the  court  refused 
the  application  of  the  defendant  for  an  inspection  of  the 
I  O  U,  although  he  alleged  that  the  I  O  U  was  in  the 
possession  of  the  plaintiff,  that  he  (defendant)  had  reason 
to  believe  it  was  in  reality  a  forgery,  and  that  he  could 
not  safely  plead  without  inspecting  it.1  Where  an  order 
had  been  made  in  an  action  of  libel,  giving  the  defendant 
leave,  under  14  and  15  Yict.  ch.  99,  §  6,  to  inspect  the 
books  of  the  plaintiff,  a  motion  by  the  defendant  to  extend 
the  time  to  make  the  inspection,  was  denied  on  the  ground 
that  the  order  for  inspection  ought  never  to  have  been 
made,  and  per  curiam.  A  man  who  publishes  a  libel 
should  be  in  a  position  to  prove  it,  and  it  would  be  a 
monstrous  thing  if  a  man  could  publish  a  libel,  imputing 
insolvency  to  a  mercantile  house,  and  then  to  come  to  this 
court  and  ask  for  an  order  to  inspect  the  plaintiff's  books, 
in  the  hoj3e  of  being  able  to  get  up  a  case.  If  the  defend- 
ant is  a  shareholder,  he  has  other  means  of  obtaining  an 
inspection,  and  we  can  only  regard  him  as  a  defendant  in 
an  action  for  libel.2 

§  273.  In  Massachusetts  and  in  Maine,  by  statutes,  a 
bill  of  particulars  of  the  language  which  the  j)laintiff 
intends  to  prove  may  be  ordered.3  These  are  cases  where 
the  precise  words  alleged  to  have  been  published  were  not 
set  forth  in  the  complaint.  (§  329.)  In  England  an  or- 
der was  made  for  a  statement  of  the  occasions  upon  which 
the  words  were  published,4  and  for  a  bill  of  particulars  as 
to  the  defense.5    Where  the  declaration  alleged  as  special 

1  Day  v.  Tuckett,  1  Bail  Court  Rep.  203 ;  but  see  Browning  v.  Aylwin,  7  B.  <fc  C. 
204,  where  an  inspection  was  allowed. 

2  Metro.  Saloon  Co.  v.  Hawkins,  4  Hurl.  &  Nor.  14G ;  1  Fost.  &  F.  413 ;  see  Stead- 
man  v.  Arden,  15  M.  &  W.  587. 

3  Clark  v.  Munsell,  C  Mete.  373;  True  v.  Humbey,  36  Maine  (1  Heath),  466. 

4  Slator  v.  Slator,  8  Law  Times,  N.  S.  856;  and  see  Wicks  v.  Macnamara,  36  Law 
-Jour.  419,  Ex.;  Early  v.  Smith,  12  Irish  Com.  Law  Rep.  p.  xxxv  of  Appendix. 

'"Wren  v.  Weild,  Law  Rep.  IV,  Q.  B.  213;   Jones  v.  Bewicke,  Law  Rep.  V,  C. 
P.  32. 


470  PROCEEDINGS    EN"   AN   ACTION.  [Ch.  XL 

damages,  which  was  essential  to  the  maintenance  of  the 
action,  that  certain  persons  had,  in  consequence  of  the 
alleged  slander,  refused  her  pecuniary  assistance  or  their 
votes  for  her  admission  into  a  benevolent  institution,  an 
application  by  the  defendant  for  particulars  of  the  names  of 
the  persons  to  whom  the  publication  was  made,  was  de- 
nied, but  interrogatories  were  allowed  as  to  the  names  of 
the  parties  whose  patronage  plaintiff  alleged  she  had  lost.1 

§  274.  If  the  defendant  does  not  answer,  he  admits  the 
allegations  of  the  complaint  and  the  truth  of  the  innuen- 
does.2 The  plaintiff  must  issue  a  writ  of  inquiry,  and 
have  his  damages  assessed  by  a  sheriff's  jury,  not  by  a 
referee.3  The  court  may  order  the  writ  of  inquiry  to  be 
executed  before  a  judge.4  On  the  execution  of  the  writ, 
the  plaintiff  is  not  required  to  give  any  evidence  of  publi- 
cation.5 The  defendant,  on  the  execution  of  the  writ,  will 
not  be  allowed  to  read  parts  of  the  publication  not  set 
forth  in  the  complaint,  in  order  to  give  a  meaning  to  the 
words  set  forth  in  the  complaint  different  from  that  al- 
leged by  the  plaintiff;6  and  semble,  the  defendant  will 
not  be  allowed  to  give  evidence  of  the  truth  of  the  lan- 
guage complained  of.7 


1  Wood  v.  Jones,  1  Fost.  &  F.  301. 

Q  Code  of  Pro.  §§  168,  246;  Tillotson  v.  Cheetham,  3  Johns.  56.  After  judgment 
by  default,  it  is  too  late  to  object  to  the  venue.     (Wickham  v.  Baker,  4  Blackf.  517.) 

3  Voorhies'  Code,  p.  359,  10th  ed.;  and  see  Schewer  v.  Kleine,  15  La.  Ann.  303. 

4  Casneau  v.  Bryant,  6  Duer,  668;  and  see  DillayeV  Hart,  8  Abb.  Pra.  Rep.  394; 
Hays  v.  Berryman,  6  Bosw.  679. 

0  Tripp  v.  Thomas,  3  B.  &  Cr.  427;  5  D.  <fc  R.  276;  1  Carr.  477.  In  this  case  it 
was  also  held,  that  although  the  plaintiff  gives  no  evidence,  the  jury  are  not  limited 
to  giving  nominal  damage,  It  has  been  held  that  after  assessment  of  damages  on  a 
writ  of  inquiry,  the  plaintiff  cannot,  without  leave  of  the  court,  enter  a  nolle  prosequi 
as  to  one  count,  and  take  judgment  for  the  others.  (Backus  v.  Richardson,  5  Johns. 
476.) 

6  Tillotson  v.  Cheetham,  3  Johns.  56. 

1  Lewis  v.  Few,  Anthon,  75.  Held  not  sufficient  ground  for  staying  a  writ  of 
inquiry  that  the  House  of  Commons  had  voted  the  publication  privileged.  (Stock- 
dale  v.  Hansard,  8  Dowl.  148.)     In  Beatson  v.  Skene,  5  Hurl.  <fe  N.  839,  an  order  was 


§§  274(3-275.]     PROCEEDINGS   EST     AN   ACTION.  471 

§  274  a.  In  Macaulay  v.  Shackell,1  Lord  Elden,  on  a 
bill  in  chancery,  granted  a  commission  for  an  examination 
of  witnesses  abroad  for  the  purpose  of  proving  a  plea 
justifying  the  truth  of  an  alleged  libel,  with  an  injunction 
till  the  return  of  the  commission.  It  was  considered  an 
extraordinary  stretch  of  his  authority,  but  subsequently 
the  common-law  courts  have  adopted  the  practice,  where 
the  facts  warrant  it,  of  issuing  a  commission  with  a  stay 
of  proceedings.  We  remember  one  case,  against  the  pro- 
prietor of  the  London  Times  newspaper,  where  the  court 
stayed  the  proceedings  for  eighteen  months,  and  gave  the 
defendant  an  open  commission  to  take  the  depositions  ot 
all  or  any  persons  in  any  part  of  the  world. 

§  2  74 b.  Where  in  an  action  for  libel  or  slander  a  cause 
is  compromised  by  the  defendant  agreeing  to  apologize  and 
pay  plaintiff's  costs,  as  between  attorney  and  client,  the 
court  will  by  rule  enforce  performance  of  the  agreement,2 
unless  defendant  shows  that  he  is  unable  to  perform  the 
stijmlation  on  his  part.8 

§  275.  The  trial  of  the  issues  in  an  action  for  slander 
or  libel  must  be  by  jury,  unless  a  jury  trial  is  waived,  or 
the  parties,  by  consent,  try  the  issue   before  the   court 


made  permitting  the  defendant  to  inspect  and  take  copies,  by  photograph  or  other- 
wise, of  the  alleged  libels.  The  cost  of  taking  copies,  in  such  a  case,  is  to  be  borne 
by  the  party  requiring  them,  but  the  costs  of  an  order  for  inspection  are  in  general 
costs  in  the  cause.     (Davey  v.  Pemberton,  11  C.  B.  X.  S.  629.) 

1  1  Bligh,  N.  S.  96.  That  case  was  affirmed  on  appeal  in  the  House  of  Lords, 
when  the  chancellor  said  he  had  received  an  anonymous  letter  "  assuring  him  that 
all  the  men  of  eminence  at  the  bar  thought  this  decision  wrong,  and  that  it  is  pro- 
duced by  the  affection  which  the  chancellor  is  supposed  to  have  had  for  some  Mr. 
Shackell."  See  Campbell's  Lives  of  the  Chancellors,  X,  ch.  ccxiii,  p.  246.  In  Brown 
v.  Murray,  4  D.  «fc  R.  830,  the  court  put  off  a  trial  to  enable  defendant  to  procure  the 
attendance  of  witnesses  from  a  foreign  country  to  prove  a  justification,  but  imposed 
the  terms  that  upon  the  trial  the  defendant  should  admit  the  publication  of  the  alle  >-ed 
libel. 

a  Riley  v.  Byrne,  2  B.  &  Ad.  779 ;  Tardrew  v.  Brook,  5  B.  &  Ad.  880. 

8  Clare  v.  Blakesley,  8  Dowl.  835. 


472  PROCEEDINGS    IN   AN   ACTION.  [Cll.  XL 

without  a  jury,  or  before  a  referee,  or  submit  to  au  arbi- 
tration.1 In  case  of  a  trial  by  jury,  the  court  may  order  a 
struck  jury,  but  will  not  do  so  in  trials  to  be  bad  in  the 
city  of  ISew  York.2  The  court  may  refuse  to  try  the 
cause  if  the  trial  will  involve  an  attack  upon  the  chastity 
of  a  third  person  not  a  party  to  the  action.8  In  case  of  a 
new  trial,  the  re-trial  may  be  before  the  judge  who  pre- 
sided on  the  first  trial4 

§  276.  It  is  supposed  that  in  actions  for  slander  or 
libel,  the  plaintiff  has,  in  every  case,  the  right  to  begin.5 
The  right  to  begin  is  so  far  within  the  discretion  of  the 
court,  that  an  erroneous  ruling  in  respect  to  it  will  neither 
entitle  to  a  new  trial  nor  render  the  judgment  voidable 
by  appeal.6     But  in  England  it  has  been  held  that  an 


1  Code  of  Pro.  §  253.  Instances  of  actions  for  slander  and  libel  being  referred. 
(Bonner  v.  McPhail,  31  Barb.  106;  Roekweller  v.  Brown,  36  N.  Y.  207;  Perkins  v. 
Mitchell,  31  Barb.  461 ;  Sanford  v.  Bennett,  24  X.  Y.  20)  arbitration,  see  Grosvenor 
v.  Hunt,  11  How.  Pra.  Rep.  355;  Grayson  v.  Meredith,  17  Ind.  357;  Shepperd  v. 
Watrous,  3  Car.  166.)  An  award  about  calling  a  butcher  a  bankrupt  was  referred  to 
a  trial  at  law,  because  of  the  excessiveness  of  the  damages  given  on  the  award. 
(Cooper  v.  The  Butcher  of  Croyden,  3  Ch.  R.  76.)  In  2  Vera.  R.  251,  it  is  said  there 
was  another  reason  besides  the  excessive  damages  for  setting  aside  the  award.  That 
reason  was  the  relationship  of  the  arbitrator  to  one  of  the  parties.  See  an  award 
that  defendant  should  make  submission  and  acknowledge  himself  sorry  for  all  tres- 

and  words.  (Cartwright  v.  Gilbert,  2  Browl.  4S.)  As  to  amount  of  costs, 
where  an  action  of  slander  was  referred,  and  plaintiff  recovered  less  than  forty  shil- 
lings damages.     (Fream  v.  Sergeant,  8  Law  Times,  N.  S.  467. 

2  Genet  v.  Mitchell,  4  Johns.  186;  Thomas  v.  Rumsey,  4  Johns.  482;  Thomas  v. 
Crosswell,  4  Johns.  491 ;  Nesniith  v.  Atlantic  Mut.  Ins.  Co.,  8  Abb.  Pra.  Rep.  423. 

3  Loughead  v.  Bartholomew,  Wright,  00.  As  to  right  of  judge  to  refuse  to  try  a 
cause,  see  He  Costa  v.  Jones,  Cowp.  729;  Squires  v.  Whisken,  3  Camp.  140;  Ditcheu 
v.  Goldsmith,  4  Camp.  152 ;  Brown  v.  Leeson,  2  H.  Black.  43 ;  Egerton  v.  Furzman,  1 
C,  it  P.  613;  Henken  v.  Guers,  2  Camp.  408. 

4  Fry  v.  Bennett,  3  Bosw.  200;  28  N.  Y.  329. 

6  Littlejohn  v.  Greeley,  13  Abb.  Pra.  R.  41.  See  "Wood  v.  Pringle,  1  Mo.  &  Rob. 
277  ;  Sawyer  v.  Hopkins,  9  Shep.  268 ;  Huntington  v.  Conkey,  33  Barb.  218  ;  Ayrault 
v.  Chamberlain,  33  Barb.  233;  Fountain  v.  West,  23  Iowa,  9;  Carter  v.  Jones,  6  C.  <t 
P.  64;  1  M.  &  Rob.  281;  Mercer  v.  Whall.  5  Q.  B.  462;  Hoare  v.  Dickson,  7  C.  B. 
164. 

6  Fry  v.  Bennett,  3  Bosw.  200;  28  N.  Y.  329. 


§  277.]  EIGHT   TO    BEGIN.  473 

erroneous  ruling  as  to  the  right  to  begin  entitles  the  ob- 
jecting party  to  a  new  trial.1     And  so  in  Alabama,2 

§  277.  Counsel,  in  opening,  should  not  state  facts 
which  they  are  not  prepared  to  prove ;  but  a  disregard  of 
this  rule  will  not  entitle  the  opposite  party  to  disprove  a 
statement  of  counsel.3  Nor  is  a  party  limited  in  his  proof 
to  the  opening  of  his  counsel.4  Counsel,  in  summing  up, 
should  confine  themselves  to  the  facts  proved ;  but  a  dis- 
regard of  this  rule  is  not  a  ground  for  a  new  trial.5  The 
summing  up  of  counsel  may,  it  seems,  affect  the  damages. 
Thus,  in  an  action  for  libel  brought  by  an  attorney,  the 
defendant's  counsel  having  ridiculed  the  profession,  and 
assailed  the  character  of  the  plaintiff,  Lord  Chief  Justice 
Coekburn  told  the  jury  that  if  they  thought  it  was  a  libel, 
and  directed  against  the  plaintiff,  "  a  defense  of  that  de- 
scription is  ten-fold,  if  not  an  hundred-fold,  an  aggravation 
of  any  libel  which  can  be  brought  against  a  man  for  any 
departure  from  the  propriety  of  his  profession,  *  *  * 
a  most  grievous  aggravation,  and  one  which  it  is  your 
bounden  duty  to  take  into  your  serious  consideration." 6 


1  Ashley  v.  Bates,  15  M.  &  W.  589;  Booth  v.  Milnes,  15  M.  &  W.  669;  4  D.  &  L 
52;  15  Law  Jour.  354,  Ex.;  Doe  v.  Brayne,  IV  Law  Jour.  127,  C.  P. ;  5  C.  B.  655; 
Hinkman  v.  Firnie,  3  M.  &  W.  505 ;  but  see  Brandford  v.  Freeman,  5  Ex.  734;  Bun-ell 
v.  Nicholson,  1  M.  &  Rob.  304;  Bird  v.  Higginson,  2  A.  &  E.  160. 

8  Chamberlain  v.  Gaillard,  26  Ala  504. 

3  Duncombe  v.  Daniell,  8  C.  &  P.  223. 

4  Nearing  v.  Bell,  5  Hill,  291. 

6  Fry  v.  Bennett,  3  Bosw.  202;  28  N.  Y.  331. 

8  Note  to  Gfroever  v.  Hoffman,  16  U.  C.  Q.  B.  Rep.  445.  Damages  may  be  increased 
by  what  passes  in  court.  (Darby  v.  Ouseley,  25  Law  Jour.  227,  Ex.)  Aggravating 
damages  by  cross-examining  the  plaintiff  as  to  the  truth  of  the  charge  against  him, 
and  failing  to  establish  the  truth  of  the  charge.  (Rish  Allah  Bey  v.  Whitehurst,  18 
Law  Times,  N.  S.  615.)  And  where,  on  the  trial  of  an  action  for  slander,  the  plaintiff 
expressed  his  willingness  to  accept  an  apology  and  nominal  damages,  if  the  defend- 
ant would  withdraw  his  plea  of  justification,  the  defendant  refused  this  offer,  and 
offered  no  evidence  in  support  of  his  plea;  the  jury  were  directed  to  consider  tin: 
nature  of  the  imputation,  how  it  had  been  made  and  persisted  in  down  to  the  time  of 
the  verdict,  and  this  direction  was  upheld.     (Simpson  v.  Robinson,  12  Q.  B.  513.) 

31 


474  PROCEEDINGS  *  IX    AX    ACTION.  [CL    XI. 

§  278.  Where  the  publication  is  denied,  the  libel 
should  not  be  read  to  'the  jury  until  after  the  plaintiff's 
counsel  has  called  witnesses  to  prove  the  publication ;  but 
a  disregard  of  this  rule  is  not  a  ground  for  a  new  trial.1 
As  a  general  rule,  the  defendant  is  entitled  to  have  read 
on  the  trial,  as  a  part  of  the  jxlaintiff's  case,  the  whole 
publication  containing  the  alleged  libellous  matter,2  or  to 
have  in  evidence  the  whole  conversation  in  which  the 
alleged  defamatory  words  were  spoken,  for  he  is  entitled 
to  show  by  the  context  that  the  alleged  defamatory  lan- 
guage was  not  used  in  a  defamatory  sense  (§  283).  Where 
a  letter  of  the  defendant's  was  read,  which  referred  to  an 
account  of  the  transaction  in  a  newspaper,  it  was  held 
that  the  newspaper  was  evidence ; s  and  where  the  alleged 
libels  were  contained  in  certain  newspapers,  the  plaintiff 
proposed  to  put  in  evidence  and  have  read  the  alleged 
libellous  articles  only.  For  the  defendant  it  was  claimed 
that  he  was  entitled  to  have  the  whole  of  the  newspapers 
put  in  evidence,  as  part  of  the  plaintiffs  case,  and  to  enable 
the  defendant  to  call  attention  to  certain  matter  published 
in  the  same  papers  with  the  said  articles,  and  to  which  they 
referred.  Cockburn,  C.  J.,  after  consulting  Blackburn,  J., 
allowed  the  defendant's  claim.4     But  where  a  paragraph 

1  Taylor  v  State  of  Georgia,  4  Geo.  14. 

2  Thornton  v.  Stephen,  2  M.  &  Rob.  45;  Cooke  v.  Hughes,  Ry.  &M.  112  ;  2  Greenl 
Ev.  §  423;  Rex  v.  Lambert,  2  Camp.  398  ;  Rutherford  v.  Evans,  6  Bing.  451 ;  4  C.  & 
P.  74.  Papers  referred  to  in  a  libel  may  be  read  in  evidence  in  explanation,  to  give 
a  construction  to  it.  (Nash  v.  Benedict,  25  Wend.  645.)  But  the  defendant  cannot 
avail  himself  of  previous  publications  to  explain  the  libellous  matter  or  mitigate  the 
damages,  unless  he  shows  the  plaintiff  to  be  the  author  of  such  previous  publications. 
(Haws  v.  Stanford,  4  Sneed  (Tenn.)  520.)  The  whole  libel  must  be  considered  in 
determining  whether  it  applies  to  the  plaintiff.  (Cook  v.  Tribune  Asso.,  5  Bl.  C.  C. 
352.)  In  the  case  of  the  essays  and  reviews,  the  Privy  Council  held  that  whilst  "it 
is  competent  to  the  accused  party  to  explain  from  the  rest  of  his  work  the  sense  or 
meaning  of  any  passage  or  word  that  is  challenged  by  the  accuser,  the  accuser  is, 
for  the  purpose  of  the  charge,  confined  to  the  passages  which  are  included  and  set 
out  in  the  articles  as  the  matter  of  the  accusation."  (London  Quarterly  Review, 
April,  1864,  Am.  reprint,  p.  284.) 

3  Weaver  v.  Lloyd,  2  Car.  &  P.  296. 

4  Hedley  v.  Barlow,  4  Fost.  &  F.  224. 


§§  270-80.]  WITHDRAWING   PLEA.  475 

in  a  subsequent  number  of  a  newspaper  is  given  in  evi- 
dence by  the  plaintiff,  to  prove  malice,  the  defendant  is 
not  entitled  to  have  read  out  of  the  same  newspaper,  as 
part  of  the  plaintiff's  case,  other  paragraphs  having  no 
reference  to  the  one  read  by  the  plaintiff.1 

§  279.  Where  the  defenses  are  a  general  denial  and 
justification,  the  plaintiff  may,  before  resting  his  case, 
either  give  all  his  evidence  to  defeat  the  justification,2  or 
content  himself  by  proving  the  allegations  of  his  complaint 
only,  in  which  case  he  will  be  restricted  in  his  reply  to 
such  evidence  only  as  goes  exactly  to  answer  the  facts 
proved  by  the  defense.3  The  evidence  is  usually  closed 
with  the  plaintiff 's  rebutting  testimony.4  It  is  discretion- 
ary with  the  court  to  allow  additional  testimony  on  the 
part  of  either  party  after  he  has  once  closed ; 5  and  where 
there  is  a  plea  of  justification,  the  plaintiff  may,  before 
resting  his  case,  give  evidence  of  express  malice.6  (§§  388, 
390,  392.) 

§  280.  The  plaintiff  may,  on  the  trial,  abandon  one  or 
more  of  the  causes  of  action  he  has  alleged  in  his  com. 
plaint,7  or  where  the  alleged  defamatory  matter  is  divisible, 
may  withdraw  a  portion  of  the  matter  set  forth  in  the  com- 
plaint.8 A  defendant  is  not  always  allowed  to  withdraw 
a  plea  of  justification,9  but  a  refusal  to  allow  such  a  with- 

1  Darby  v.  Ouseley,  1  Hurl.  &  JT.  1. 

2  Brown  v.  Murray,  Ry.  <fcMo.  254;  Ayrault  v.  Chamberlain,  33  Barb.  234;  York 
v.  Pease,  2  Gray,  282. 

3  Pierrepoint  v.  Sharpland,  1  Carr.  448. 

4  Teagle  v.  Duboy,  8  Blackf.  134. 
6  Wilborn  v.  Odell,  29  111.  456. 

6  Fry  v.  Bennett,  3  Bosw.  202 ;  but  see  Winter  v.  Donovan,  8  Gill,  370. 

7  Kirkaldy  v.  Paige,  17  Verm.  256  ;  Stow  v.  Converse,  4  Conn.  17;  Gould  v.  V7eed, 
12  Wend.  12. 

8  Hesler  v.  Degant,  3  Ind.  501 ;  Genet  v.  Mitchell,  7  Johns.  120. 

9  Clinton  v.  Mitchell,  3  Johns.  144 ;  Lent  v.  Butler,  3  Cow.  370 ;  Lee  v.  Robertson, 
1  Stew.  138.  Where  the  defendant,  during  a  trial,  withdrew  a  plea  of  justification, 
held  that  the  plea  could  not  be  considered  by  the  jury  in  aggravation.  (Shirley  v. 
Keatley,  4  Cold.  (Tenn.)  29.) 


476  PROCEEDINGS    EST   AN   ACTION.  [Ch.  XI. 

drawal  was  in  one  case  held  error.1  Where  the  defendant 
had  pleaded  the  general  issue  and  a  plea  of  apology,  leave 
to  withdraw  the  plea  of  apology  was  denied,  the  plaintiff 
swearing  he  would  be  prejudiced.2  It  was  held  that  a  writ- 
ten statement  made  by  the  defendant,  in  which  he  disclaimed 
any  evil  intentions  toward  plaintiff,  could  not  be  given  in 
evidence  on  the  trial,  and  if  allowed  by  the  plaintiff  to  be 
given  in  evidence,  could  not  be  sent  out  with  the  jury.3 
Where  the  plaintiff,  on  the  trial,  abandons  a  part  of  the 
defamatory  matter,  the  part  abandoned  may  be  referred 
to,  to  show  the  meaning  of  the  part  retained.4 

§  281.  The  jury  are  to  determine,  as  a  question  of  fact, 
the  customary  meaning  of  a  word,5  and  the  meaning  of 
doubtful  words,6  and  whether  the  language  was  or  was 
not  ironical.7  "  Where  words  are  capable  of  two  construc- 
tions, in  what  sense  they  were  meant  is  a  question  of  fact 


1  Fitzgerald  v.  Ferguson,  25  111.  138.  In  Pennsylvania  the  withdrawal  of  the  plea 
is  within  the  discretion  of  the  court.     (Rush  v.  Cavanagh,  2  Barr,  187.) 

2  Sullivan  v.  Lenihan,  7  Irish  Law  Rep.  463. 

3  Hamilton  v.  Glenn,  1  Penn.  St.  Rep.  340. 

4  Genet  v.  Mitchell,  7  Johns.  ]  20. 

5  Law  v.  Cross,  1  Black  U.  S.  Rep.  583.  See  Edsall  v.  Brooks,  3  Robertson,  284 ; 
Barnett  v.  Allen,  1  Fost.  &  F.  125;  Wachter  v.  Quenzer,  29  N.  Y.  547.  It  is  for  the 
court  to  construe  words  in  the  English  language  (Barnett  v.  Allen, 36  Law  Jour.  412, 
Ex.);  and  per  Bramwell,  J.  :  "Either  the  word  is  a  known  word  in  the  language,  in 
which  case  we  must  construe  it,  or  it  is  a  cant  slang  phrase,  the  meaning  of  which  is  a 
matter  of  fact.  {Id. ;  and  see  ante,  note  2  p.  169,  and  post,  §  286.)  Where  the  words 
are  capable  of  only  one  meaning,  their  construction  is  a  question  for  the  court,  but 
where  they  are  capable  of  two  meanings,  or  are  of  doubtful  signification,  it  is  the 
province  of  the  jury  to  decide  in  what  sense  they  were  used.  (Calkins  v.  Wheaton, 
1  Edmonds'  Rep.  229,  citing  Goodrich  v.  Woolcott,  3  Cow.  231;  5  Cow.  714.)  The 
quality  of  a  libellous  publication  is  a  question  for  the  court.  (Pittock  v.  O'Neill,  63 
Penns.  253.) 

6  Hays  v.  Brierly,  4  Watts,  392. 

7  Re°\  v.  Browne,  Holt,  425;  11  Mod.  86;  Andrews  v.  Woodmansee,  15  Wend. 
232;  Boydell  v.  Joues,  4  M.  &  W. 446 ;  7  Dowl.  Pra.  Cas.  210.  Where  the  court 
charged  the  jury  that  if  the  words  were  spoken  "jocularly,"  the  defendant  was  enti- 
tled to  a  verdict,  and  the  jury  having  found  for  the  defendant,  the  court  granted  a 
new  trial  without  costs,  and  on  plaintiff  stipulating  to  abandon  the  action.  (Donoghue 
v.  Hayes,  Hayes'  Ir.  Ex.  Rep.  265.) 


§  282.]       PROVINCE  OF  COUET  AND  JUEY.  477 

to  be  decided  by  the  jury." 1  Tims,  if  in  one  sense  the 
language  imputes  a  crime,  and  in  the  other  sense  does  not, 
the  jury  are  to  say  in  which  sense  the  language  is  to  be 
understood.2  And  where  A.  said  to  B.,  "  You  have  killed 
one  negro  and  nearly  killed  another,"  held  that  the  jury 
were  to  say  whether  the  words  were  used  in  a  defama- 
tory sense  or  not ; 3  so  where  the  language  was,  "  You  are 
a  thief.  You  stole  hoop-poles  and  saw-logs  from  D.  and 
M.'s  land,"  held  that  it  was  properly  left  to  the  jury  to 
decide  if  the  charge  was  taking  timber  or  hoop-poles 
already  cut — which  was  a  felony — or  with  cutting  down 
and  carrying  away  timber  to  make  hoop-poles,  which  was 
a  trespass.4  Where  words  apparently  charging  a  crime 
are  published,  it  is  proper  to  instruct  the  jury  that  the 
words  are  actionable  if  uttered  with  intent  to  charge  the 
crime.5 

§  282.  Where  the  plaintiff,  in  an  action  for  libel,  had 
set  out  in  his  declaration  an  article  published  by  the  de- 

1  1  Stark.  Slan.  60;  Van  Vechten  v.  Hopkins,  5  Johns.  221;  Dexter  v.  Taber,  12 
Id.  240;  McKinley  v.  Rob,  20  Id.  356;  Gorham  v.  Ives,  2  Wend.  534;  Gibson  v. 
Williams,  4  Wend.  320;  Blaisdell  o.  Raymond,  14  How.  Pra.  Rep.  265;  Bennett  v. 
Williamson,  4  Sandf.  60.  Where  the  words  impute  that  the  plaintiff,  a  reputed  mar- 
ried woman,  is  the  wife  of  another  man,  it  is  for  the  jury  to  say  whether  the  defend- 
ant does  or  does  not  mean  she  has  been  guilty  of  bigamy.     (Heming  v.  Power,  10  M. 

6  W.  564.  Where  the  words  were,  I  have  got  a  warrant  for  Tempest  (the  plaintiff) ; 
I  will  advertise  a  reward  to  apprehend  him,  and  shall  transport  hira  for  felony, 
Lord  Ellenborough  left  it  to  the  jury  to  say  whether  defendant  spoke  with  reference 
to  the  warrant  which  had  been  improvidently  issued,  or  meant  to  impute  a  charge  of 
felony.  (Tempest  v.  Chambers,  1  Stark.  Cas.  67.)  Where  the  words  were,  A.  &  B. 
have  closed  their  accounts  with  you,  and  are  going  to  shut  you  up — innuendo  that 
plaintiff  was  insolvent,  or  likely  to  be  so — left  to  the  jury  to  say  if  such  was  the 
meaning.     (Gostling  v.  Brooks,  2  Fost.  &  F.  76.) 

8  Cregier  v.  Bunton,  2  Rich.  395;  11  Humph.  507;  cx-pnrte  Bailey,  2  Cow.  479- 
and  see  1   Amer.  Lead.  Ca3.  153;  Davis  v.  Johnson,  2  Bailey,  579;  Welsh  v.  Eakle, 

7  J.  J.  Marsh.  424 ,  Lucas  v.  Nichols,  7  Jones'  Law  (N.  Car.),  32 ;  Snyder  v.  Andrews,  6 
Barb.  47;  Thompson  v.  Grimes,  5  Ind.  (Porter)  385;  Smith  v.  Miles,  15  Verm.  245- 
Usher  v.  Severance,  2  App.  9;  Turrill  v.  Dolloway,  26  Wend.  3S3;  Jones  v.  Rivers  8 
Brevard,  95. 

3  Hay3  v.  Hays,  1  Humph.  402;  Chalmers  v.  Payne,  2  C.  M.  &  R.  156. 

4  Dexter  v.  Taber,  12  Johns.  239  ;  and  Stockdale  v.  Tarte,  4  Adol.  &  El.  1016; 
Tu3on  v.  Evans,  3  Perr.  &  D.  396. 

*St.  Martin  v.  Desnoyer,  1  Min.  156. 


478  PEOCEEDINGS   EN"   AJST   ACTION.  [Ch.  XI. 

fendant  in  a  newspaper,  which  the  plaintiff  claimed  to  be 
libellous,  and,  on  the  trial,  the  defendant  selected  a  cer- 
tain portion  of  the  words  of  snch  article,  which  he  claimed 
were  proved  to  be  true,  and  if  otherwise,  were  not  libel- 
lous, and  so  he  prayed  the  court  to  instruct  the  jury ;  the 
court,  after  denning  a  libel,  and  pointing  out  what  would 
constitute  one,  instructed  the  jury  that  they  might  con- 
sider the  whole  libellous  matter  in  connection  with  the 
circumstances  proved  or  admitted,  and  say  what  was  the 
meaning  of  the  writing — what  it  imputed  to  the  plaintiff 
as  to  motives,  objects,  principles,  acts,  and  character ;  and 
if  they  were  such  as  to  make  the  writing  libellous  accord- 
ing to  the  definition  previously  given,  and  it  was  false 
and  malicious,  they  wrould  find  the  matter  libellous,  and 
sufficient  to  sustain  the  action ;  it  was  held  that  this  direc- 
tion was  unexceptionable.1  A  banker,  remitting  the  pro- 
ceeds of  a  note  sent  to  him  for  collection,  appended  to  his 
letter  the  words,  "  Confidential.  Had  to  hold  over  for  a 
few  days  for  the  accommodation  of  L.  &  H.,"  who  were 
the  makers.  Held  that  these  words  have  not  necessarily 
an  injurious  meaning,  and  that  their  interpretation  was  a 
matter  for  the  jury.2  Where  the  libel  was  copied  by  the 
defendants  from  another  paper,  with  the  word  "  fudge " 
added  thereto,  held  that  it  was  for  the  jury  to  say  with 
what  motive  the  publication  was  made,  and  whether  that 
word  was  only  to  give  a  color  at  a  future  day.3 

§  283.  Where,  at  the  time  of  speaking  defamatory 
words,  the  defendant  qualifies  them  by  other  words,  the 
jury  are  to  determine  from  all  that  took  place  at  the  time, 
whether  a  crime  was  or  was  not  charged;  but  to  justify 
the    application   of    this    principle,   the   qualification   or 


1  Graves  v.  "Waller,  19  Conn.  90. 

2  Lewis  v.  Chapman,  16  X.   Y.   369;   and  see  Simmons  v.  Morse,  6  Jones'  Law 
(N.  Car.),  6. 

3  Hunt  v.  Algar,  6  C.  &  P.  245. 


§  284.]       PROVINCE  OF  COURT  AND  JURY.  479 

explanation  must  not  only  accompany  the  words,  but 
must  be  sufficiently  explicit  to  enable  those  who  hear  the 
same,  and  who  are  presumed  to  acquire  all  their  knowledge 
of  the  transaction  from  what  was  said  at  the  time,  reasona- 
bly to  understand  to  what  the  words  refer,  and  that  the 
meaning  which  the  words  standing  alone  would  convey 
was  not  the  meaning  intended.1 

§  284.  It  is  for  the  judge  to  decide  whether  the  language 
is  capable  of  the  meaning  ascribed  to  it  by  the  innuendo, 
and  for  the  jury  to  decide  whether  such  meaning  is  truly 
ascribed.2  .  Thus  where  the  defamatory  matter  was  con- 
cerning K.,  which  it  was  alleged  meant  King  George  the 
Third,  held  that  the  jury  was  to  decide  if  such  was  its 
meaning.3  The  judge  may  give  his  opinion  that  the  pub- 
lication complained  of  conveys  a  certain  meaning,  and  that 
therefore  it  is  libelous,  but  still  it  is  for  the  jury  to  say 
whether  or  not  the  publication  does  convey  the  meaning 
which  the  judge  ascribes  to  it.4  Where  the  words  were 
that  the  plaintiff  "  will  lie,  cheat,  steal  and  swear,"  it  was 
held  that  the  court  might,  in  answer  to  a  broad  request  of 
the  defendant's  counsel  to  charge  that  the  evidence  did 
not  support  the  declaration,  say  to  the  jury  that  these 
words  might  import  that  the  plaintiff  stole.5  The  plain- 
tiff, D.,  who  had  worked  for  F.  in  making  pill  boxes  by  a 
machine  owned  and  kept  secret  by  R,  left  R,  and  set  up 
a  machine  for  making  similar  boxes  on  his  own  account. 
R,  when  speaking  of  D.'s  said  machine,  said,  "D.  stole  my 


1  Van  Akin  v.  Caler,  48  Barb.  60.     See  §  134. 

2  Blagg  v.  Sturt,  10  Q.  B.  899;  16  Law  Jour.  39,  Q.  B. ;  11  Jur.  101 ;  Cooper  v. 
Greeley,  1  Denio,  361 ;  VanJerlip  v.  Roe,  23  Penn.  St.  R.  82;  Barger  v.  Barger,  18 
Penn.  St.  R.  489;  Hemrning3  v.  Gasson,  1  Ell.  B.  <fc  E.  346;  Justice  v.  Kirlin,  17 
Iud.  588  ;  Wakelin  v.  Norris,  2  Fost.  &  F.  26  ;  Pittock  v.  O'Neill,  63  Penns.  268;  Gost- 
ling  v.  Brooks,  2  Fost.  &  F.  1G. 

3  Rex.  v.  Woodfall,  5  Burr.  2661. 

4  Empson  v.  Fairford,  W.  W.  &  D.  10 ;   1  Jurist,  20. 
6  Dottarer  v.  Bushey,  16  Penn.  St.  R.  204. 


480  PROCEEDING-S   IN   AN    ACTION.  [Ch.  XI. 

patterns  to  get  up  Ms  castings  by."  Held,  that  it  was  for 
the  jury,  and  not  for  the  court,  to  decide  whether  F. 
intended,  by  these  words,  to  charge  D.  with  the  crime  of 
larceny.1  The  alleged  libel  stated  that  plaintiff  had,  under 
certain  specified  circumstances,  been  surety  for  another, 
and  then  asked  the  question  why  he  had  become  such 
surety,  and  answered  by  saying :  There  could  be  but  one 
answer — he  was  hired  for  the  occasion.  It  was  left  to  the 
jury  to  say  if  this  was  a  fair  comment,  and  if  so  to  find 
for  defendant.  The  jury  found  for  defendant;  and  on 
motion  for  a  new  trial,  the  court,  although  of  opinion  that 
the  charge  of  being  hired  was  not  a  just  inference  from 
the  facts  stated,  held  that  the  question  had  been  correctly 
submitted  to  the  jury,  and  refused  to  disturb  the  verdict.2 
Where  the  charge  was  "  I  have  a  suspicion  that  you  have 
robbed  my  house,"  innuendo  that  plaintiff  had  stolen  cer- 
tain goods  of  the  defendant,  held  that  it  was  properly  left 
to  the  jury  to  say  whether  the  defendant  meant  to  impute 
an  absolute  charge  of  felony,  or  only  a  suspicion  of  felony.3 
In  an  action  of  slander,  the  words  laid  did  not,  in  express 
terms,  charge  the  crime,  which,  by  innuendo,  it  was  stated 
the  defendant  meant  to  impute  to  the  plaintiff,  and  there 
was  no  inducement  showing  of  what  the  words  were 
spoken;  the  circuit  judge  charged,  that  the  declaration 
would  suffice  if  the  jury  believed  that  the  words  would 
well  carry  the  meaning  that  had  been  ascribed  to  them. 
Held,  that  such  charge  was  proper,  and  a  verdict  for  the 
plaintiff  was  sustained.4 

§  285.  Whether  the  facts  charged  in  the  publication 
are  true,  is  a  question  for  the  jury.5     Where  the  charge 


1  Dunnell  v.  Fiske,  11  Mete.  551. 

2  Cooper  v.  Lawson,  8  Adol.  &  El.  *746. 

3  Tozer  v.  Mashford;  6  Ex.  539;  20  Law  Jour.  Rep.  N.  S.  224,  Ex.;  see  §163,  ante. 

4  Marshall  v.  Gunter,  6  Rich.  419. 

"Thomas  v.  Crosswell,  7  Johns.  264;  Van  Vechten  v.  Hopkins,  5  Johns.  211. 


§    286.]  PROVINCE    OF    COURT    AND    JURY.  481 

was  that  plaintiff  had  traitorously  betrayed  the  secrets  of 
his  government,  it  was  held  to  be  a  question  for  the  jury 
to  say  if  he  had  traitorously  betrayed  the  secrets  of  his 
government.1  And  where  the  charge  was  that  the  plain- 
tiff was  a  great  defaulter,  and  the  proof  was  that  he  was 
a  defaulter,  held  that  it  was  for  the  jury  to  say  whether 
he  was  a  great  defaulter.2  And  leaving  it  to  the  jury 
whether  or  not  the  defendant  had  made  a  time  statement 
of  a  judicial  proceeding,  was  held  to  be  proper.3 

§  286.  Where  the  language  published  is  unambiguous 
(§  126)  it  is  the  exclusive  province  of  the  court  to  deter- 
mine its  construction,  and  to  determine  whether  or  not 
upon  its  face  it  is  actionable  per  sef  or  concerning  the 
plaintiff  in  his  professional  character.5  But  the  court  will 
not  withhold  the  case  from  the  jury  unless  it  can  plainly 
see  upon  the  face  of  the  record  that  the  matter  charged 
cannot  in  any  way  be  libellous.6  On  not  guilty  pleaded, 
whether  the  defamatory  matter  was  published  concerning 
the  plaintiff,  or  whether  by  the  person  mentioned  the 
plaintiff  was  intended,  is  a  question  of  fact  for  the  jury.7 
Where  the  declaration  alleged  the  publication  of  a  certain 
"  libel  concerning  the  plaintiff,"  but  contained  no  innuendo, 
colloquium,  or  inducement  to  connect  the  publication  with 

1  Genet  v.  Mitchell,  7  Johns.  90. 

2  "Warman  v.  Hine,  1  Jurist,  820. 

3  Huff  v.  Bennett,  4  Sandf.  120. 

4  Reeves  v.  Templar,  2  Jurist,  137;  Matthews  v.  Beach,  5  Sandf.  256;  Green  v. 
Telfair,  20  Barb.  11;  Fry  v.  Bennett,  5  Sandf.  54;  Haight  v.  Cornell,  15  Conn.  74; 
Mix  v.  Woodward,  12  Conn.  262;  Thompson  v.  Grimes,  5  Ind.  385;  MeKinley  v. 
Robb,  20  Johns.  351 ;  Archbold  v.  Sweet,  5  C  &  P.  219;  1  Mo.  &  Rob.  162;  see 
ante,  §  281. 

6  Tomlinson  v.  Brittlebank,  1  Har.  &  "W.  573. 

8  Fray  v.  Fray,  17  C.  B.  N.  S.  603,  and  by  the  court  in  Teacy  v.  M'Kenna,  4  Ir.  C 
L.  374,  in  overruling  a  demurrer  to  the  declaration,  "  It  is  enough  that  the  court  aro 
not  prepared  to  decide  that  this  document  is  not  capable  of  a  construction  in  any 
reasonable  sense  that  would  make  it  a  libel." 

7  Van  Vechten  v.  Hopkins,  5  Johns.  211 ;  Green  v.  Telfair,  20  Barb.  11 ;  Godson 
v.  Home,  1  Brod.  &  Bing.  7. 


482  PROCEEDINGS    IN   AN   ACTION.  [Ch.  XI. 

the  plaintiff,  and  no  evidence  but  the  publication  itself  was 
offered  to  connect  him  therewith,  it  was  held  to  be  a  ques- 
tion for  the  court,  as  a  question  of  construction,  to  deter- 
mine whether  or  not  the  publication  referred  to  the  plain- 
tiff.1 Where  no  extrinsic  facts  are  offered  in  evidence,  or 
if  the  language  is  ambiguous,  the  question  of  libel  or  no 
libel  is,  in  a  civil  action,  a  question  of  law,2  and  as  neither 
the  statute  of  32  George  the  Third,  enabling  the  jury  to 
give  a  general  verdict  in  an  action  for  libel,  nor  the  similar 
provision  in  the  Revised  Statutes  of  New  York,  apply  to 
civil  actions,3  the  judge  may  charge  the  jury  whether  or 
not,  as  a  question  of  law,  a  publication  is  libellous  on  its 
face,4  and  it  is  the  duty  of  the  jury  to  follow  the  instruc- 
tions of  the  judge.5  It  is  the  practice  for  the  judge  first 
to  give  a  legal  definition  of  libel,  and  then  to  leave  it  to 
the  jury  to  say  whether  the  facts  necessary  to  constitute 
that  offense,  have  been  proved  to  their  satisfaction.*  The 
judge  may  state  under  what  circumstances  language  in 
itself  actionable  may  be  spoken  with  impunity,  and  by 
way  of  illustration  put  a  case  differing  in  some  respects 
from  that  before  the  court.7     He  is  bound,  upon  a  proper 

1  Barrows  v.  Bell,  7  Gray  (Mass.)  301. 

2  Snyder  v.  Andrews,  6  Barb.  43. 

3  Hunt  v.  Bennett,  19  N.  Y.  173  ;  Levi  v.  Milne,  4  Bing.  195;  Snyder  v.  Andrews 
6  Barb.  55  ;  Dollaway  v.  Turrell,  26  Wend.  399 ;  Reeves  v.  Templar,  2  Jur.  137. 

4  Darby  v.  Ouseley,  1  Hurl.  &  N.  1 ;  Wagaman  v.  Byers,  17  Md.  183;  Hunt  v. 
Bennett,  19  N.  Y.  173. 

6Hakewell  v.  Ingram,  2  Com.  Law  Rep.  1397;  The  State  v.  Jeandell,  32  Penn. 
St.  Rep.  475 ;  and  see  Duffy  v.  The  People,  26  N.  Y.  588 ;  Rex  v.  Burdett,  4  B.  & 
Aid.  131 ;  2  Bennett  &  Hurd  Lead.  Cr.  Cas.  388 ;  The  State  v.  Crotean,  23  Verm. 
14  ;  IT.  S.  v.  Morris,  1  Curtis,  53  ;  Baylis  v.  Lawrence,  11  Adol.  &  El.  925  ;  Rex  v. 
Dean  of  St.  Asaph,  21  How.  St.  Tr.  847  ;  3  T.  R.  42S  note  ;  Sixth  Rep.  of  Crim.  Law 
Comm'rs,  A.  D.  1841 ;  Forsyth's  Hist,  of  Trial  by  Jury,  268 ;  2  Camp.  Ch.  Justices, 
478  ;  3  Id.  56 ;  Rex  v.  Miller,  20  How.  St.  Tr.  892  ;  Rex  v.  Woodfall,  5  Burr.  2661 ; 
Shattuck  v.  Allen,  4  Gray,  541  ;  Com'wealth  v.  Anthes.  5  Gray,  185  ;  Com'wealth  v. 
Porter,  10  Mete.  263;  Goodrich  v.  Davis,  11  Mete.  473  ;  Com'wealth  v.  Abbott,  13 
Mete.  120  ;  Pearce  v.  The  State,  13  N.  Hamp.  536  ;  The  People  v.  Crosswell,  3  Johns. 
Cas.  337. 

8  Parmiter  v.  Coupland,  6  M.  &  W.  105 ;  Cox  v.  Lee,  Law  Rep.  IV,  Ex.  288. 

7  Taylor  v.  Robinson,  29  Maine,  323. 


§  286.]       PROVINCE  OF  COURT  AND  JURY.  483 

motion,  to  rule  whether  or  not  the  declaration  sets  forth  a 
cause  of  action.1  But  in  charging  the  jury,  the  judge  is 
not  bound  to  give  his  opinion  as  to  the  nature  of  the  pub- 
lication as  a  matter  of  law.2  And  where  the  judge  charged, 
"  I  find  a  difficulty  in  saying  whether  it  (the  publication) 
is  a  libel  or  not.  Gentlemen,  can  you  assist  me  ? "  a  mo- 
tion for  a  new  trial  on  the  ground  of  misdirection  was 
denied.3  But  it  is  no  misdirection  that  the  judge,  in  addi- 
tion to  leaving  the  proper  questions  to  the  jury,  stated  his 
own  opinion  as  to  the  libellous  nature  of  the  publication.4 
Although  the  judge  is  to  leave  it  to  the  jury  whether, 
under  the  circumstances,  the  publication  is  a  libel,  on  the 
general  issue  guilty  or  not  guilty,  yet  if  they  find  a 
verdict  for  the  defendant  on  that  issue,  in  a  case  in  which 
no  question  is  made  as  to  the  tact  of  publication,  nor  as 
to  its  application  to  the  plaintiff,  the  court  will  set  aside 
the  verdict.5  And  where  the  action  was  for  calling;  the 
plaintiff  a  thief,  and  the  defense  was  that  the  defendant 
so  explained  the  words  that  the  charge  did  not  amount  to 
an  imputation  of  felony,  the  court  being  of  opinion  that 
the  defense  failed,  charged  the  jury  that  the  plaintiff  was 
entitled  to  a  verdict,  and  that  the  only  question  for  them 
to  determine  was  the  amount  of  damages.  The  defendant 
excepted  to  this  charge,  and  on  appeal  the  charge  was  held 
to  be  proper.6 


1  Shattuck  v.  Allen,  4  Gray  (Mass.)  540;  Matthews  o.  Beach,  5  Sandf.  256. 

a  Parmiter  v.  Coupland,  6  M.  &  W.  105 ;  Snyder  v.  Andrews,  6  Barb.  43.  But  in 
Pennsylvania  the  rule  is  otherwise;  there  the  Court  is  bound  to  instruct  the  jury 
whether  the  publication  is  or  is  not  libellous.     (Pittock  v.  O'Neill,  03  Penns.  253.) 

'  Baylis  v.  Lawrence,  3  Perr.  &  D.  526. 

4  Darby  v.  Ouseley,  1  Hurl.  &  N.  1 ;  Snyder  v.  Andrews,  6  Barb.  55 ;  and  see 
Empson  v.  Fairford,  W.  W.  &  D.  10 ;   1  Jurist,  20. 

5Hakewell  v.  Ingram,  2  Com.  Law  Rep.  1397;  and  see  Levi  v.  Milne,  4  Bing.  195  ; 
Long  v.  Eakle,  4  Md.  454;  Usher  v.  Severance,  20  Maine,  9;  Goodrich  v.  Davis,  11 
Mete.  474. 

8  Van  Aikin  v.  Caler,  48  Barb.  58. 


484  PEOCEEDENGS   EST    AN   ACTION.  [Ch.  XI. 

§  287.  Where  the  circumstances  of  the  publication 
are  controverted  or  uncertain,  a  case  is  presented  in  which 
the  court  is  to  instruct  the  jury  what  condition  of  circum- 
stances would  render  the  publication  privileged,  and  then 
leave  it  to  the  jury  to  determine  the  character  of  the 
publication,  and  give  a  verdict  accordingly.  For  the  jury 
cannot  decide  whether  a  libel  was  published  on  a  justifiable 
occasion,  without  being  told  by  the  court  what  facts 
would  constitute  such  an  occasion.1  The  uncertainty  as 
to  the  facts  may  consist  either  in  the  happening  or  not 
happening  of  certain  events,  or  in  the  question  whether 
or  not  the  language  exceeded  the  privileged  limits. 

§  288.  The  facts  being  uncontro verted,  the  court  is 
to  determine  whether  or  not  the  publication  is  privi- 
leged.2 If  the  court  decides  that  the  publication  is 
absolutely  privileged,  that  of  course  determines  the  action ; 
if  the  court  decides  the  publication  is  conditionally  privi- 
leged, then  it  is  a  matter  of  law  for  the  court  to  determine 
whether  there  is  any  intrinsic  or  extrinsic  evidence  of 
malice.  If  the  court  decides  this  question  in  the  negative 
it  directs  a  nonsuit  or  a  verdict  for  the  defendant,  without 
reference  to  the  jury.3  But  if  the  court  decides  there  is 
any  evidence,  either  in  the  language  of  the  publication 
itself  (intrinsic  evidence),  or  in  the  circumstances  of  its 
publication,  from  which  a  want  &f  good  faith  or  a  bad 
intent  (malice)  on  the  part  of  the  publisher  may  be 
inferred,  it  then  becomes  the  duty  of  the  court  to  submit  to 
the  jury,  with  appropriate  instructions,  and  as  a  question  of 
fact  for  their  determination,  whether  in  making  the  publica- 
tion the  publisher  acted  in  good  faith  or  otherwise ; 4  for  the 

1  Duncan  v.  Brown,  15  B.  Monr.  186. 

3  Darby  v.  Ouseley,  1  Hurl.  <fe  N.  1 ;  Wenman  v.  Ash,  13  C.  B.  836. 

3  Cooke  v.  Wildes,  5  El.  &  Bl.  328;  Somerville  v.  Hawkins,  10  C.  B.  583;  Taylor 
v.  Hawkins,  16  Q.  B.  308;  Harris  v.  Thompson,  13  C.  B.  333;  Wenman  v.  Ash,  id. 
836;  Fry  v.  Bennett,  5  Sandf.  54  ;  Jarvis  v.  Hathaway,  3  Johns.  180. 

4  Lancey  v.  Bryant,  30  Maine  (IT  Shep.),  466 ;  Powers  v.  Smith,  5  B.  <fc  A.  850; 
Abrams  v.  Smith,  8  Blackf.  95. 


288.]  PROVINCE    OF   COUET   AND    JURY.  485 

question  of  malice  in  such  a  case  is  always  a  question  of 
fact  to  be  determined  by  the  jury.1  Thus  where  defen- 
dant had  charged  plaintiff  with  stealing  and  had  her 
searched  for  a  brooch,  missing  but  afterwards  found  in 
defendant's  possession,  held  to  be  a  question  for  the  jury 
whether  the  charge  was  made  bona  fide,  and  that  the 
circumstances  and  occasion  of  making  it  should  be  left 
to  their  consideration  ; 2  and  to  entitle  a  plaintiff  "  to  have 
the  question  of  malice  submitted  to  the  jury,  it  is  not 
necessary  that  the  evidence  should  be  such  as  necessarily 
leads  to  the  conclusion  that  malice  existed,  or  that  it 
should  be  inconsistent  with  the  non-existence  of  malice, 
but  it  is  necessary  that  the  evidence  should  raise  a  pro- 
bability of  malice,  and  be  more  consistent  with  its  ex- 
istence than  with  its  non-existence ; 3  and  where  the  only 
evidence  of  malice  was  claimed  to  be  on  the  face  of  the 
publication,  held  that  it  ought  to  have  been  left  to  the  jury 
to  determine  whether  there  was  any  malice.4  But  where 
the  libel  purported  to  be  the  report  of  a  proceeding  in  the 
insolvent  court,  and  imputed  to  the  insolvent's  landlord 
(the  plaintiff)  that  he  colluded  with  the  insolvent  in 
putting  in  a  fictitious  distress ;  held  that  the  judge  ought 
not  to  have  left  it  as  a  question  to  the  jury  whether  the 
defendant  intended  to  injure  the  plaintiff,  but  that  if  he 


1  Whiter.  Nicholls,  3  How.  U.  S.  Rep.  266;  Blackburn  v.  Blackburn,  4  Bing. 
395;  Robinson  v.  May,  2  J.  P.  Smith,  3;  Bodwell  v.  Osgood,  3  Pick.  379;  Toogood 
v.  Spyring,  1  Cr.  M.  <fe  R.  181 ;  Bromage  v.  Prosser,  6D.AR.  296 ;  Haight  v.  Cornell, 
15  Conn.  74;  Gardner  v.  Slade,  13  Ad.  <fe  Ell.  N.  S.  796;  Pattison  v.  Jones,  8  B.  & 
C.  578.     See  §  399,  post. 

2  Padmore  v.  Lawrence,  3  Perr.  &  D.  209.  Court  to  leave  bonafidcsto  juiy,  and  then 
to  determine  whether  or  not  the  publication  is  privileged.  (Stace  v.  Griffith,  Law 
Rep.  II,  Pri.  C.  C.  420;  little  v.  Clements,  1  Ir.  C  L.  194.)  Whether  or  not  the 
occasion  gives  the  privilege  is  a  question  of  law.  Whether  or  not  the  defendant  has 
fairly  conducted  himself  in  the  execution  of  the  privilege,  is  a  question  of  fact  for 
the  jury.  (Dickson  v.  Earl  Wilton,  1  Fost.  &  F.  419;  and  see  George  v.  Goddard,  2 
Fost.  <fc  F.  689.) 

3  Somerville  v.  Hawkins.  10  C.  B.  583  ;  and  see  Taylor  v.  Hawkins,  16  Q.  B.  308; 
Harris  v.  Thompson,  13  C  B.  333;  Wenman  v.  Ash,  13  C.  B.  836. 

4  Gilpin  v.  Fowler,  9  Ex.  615;  18  Jur.  292. 


486  PROCEEDINGS   IN   AN   ACTION.  [Cll.  XI, 

thought  the  tendency  of  the  publication  injurious  to  the 
plaintiff,  he  ought  to  have  told  them  it  was  actionable, 
and  the  plaintiff  entitled  to  a  verdict.1 

§  289.  The  amount  of  damages  is  to  be  determined 
by  the  jury,  but  the  court  should  instruct  them  as  to  the 
rules  by  which  they  should  be  governed  in  fixing  the 
amount.2  A  general  instruction  to  find  such  damages  as 
under  all  the  circumstances  they  thought  right,  was  held 
to  be  improper.3  It  was  held  no  ground  for  exception 
that  the  judge  advised  the  jury  to  give  only  nominal 
damages.4  A  charge  that  compensatory  damages  are  to 
be  given  where  the  publication  is  without  malice,  and 
that  compensatory  damages  are  such  as  will  repay  the 
costs  and  trouble  of  the  suit  and  of  disproving  the 
defendant's  allegations,  was  held  right,5  although  it  has 
been  held  erroneous  to  charge  the  jury  to  take  into  con- 

1  Haire  v.  Wilson,  9  B.  &  Cr.  643. 

s  True  v.  Plumley,  36  Maine,  466.  Held  that  in  directing  the  jury,  as  to  damages, 
it  was  not  necessary  for  the  judge  to  caution  the  jury,  as  to  the  amount  of  injury 
sustained,  by  telling  them  to  take  into  consideration  the  fact  that  one  publication 
only  had  been  proved,  and  that  a  mere  sale  to  the  plaintiff's  agent,  of  a  copy  of  the 
paper  containing  the  libel.  (Brunswick  v.  Harnier,  14  Q.  B.  189.)  If  there  was  only 
one  witness  to  the  speaking  of  words  charging  theft,  and  he  testifies  that  his  opinion 
of  the  person  slandered  was  not  thereby  affected,  and  that  he  still  believed  him  to  be 
honest,  yet,  if  the  words  were  spoken  maliciously,  it  is  erroneous  to  limit  the  jury  to 
nominal  damages.     (Markham  v.  Russell,  12  Allen  (Mass.),  573.) 

3  Duncan  v.  Brown,  15  B.  Monr.  186. 

4  Matthews  v.  Beach,  5  Sandf.  256.  Where  the  judge  recommended  the  jury  to 
give  nominal  damages,  but  the  jury  gave  £5  damages,  the  court  refused  to  set  the 
verdict  aside.  (Chilvers  v.  Greaves,  5  M.  &  G.  578.)  The  right  of  the  court  to 
direct  a  verdict  for  nominal  damages  doubted.  (Strong  v.  Kean,  13  Irish  Law  Rep. 
93.)  Where  the  publication  complained  against  was  the  publication,  in  the  defendant's 
newspaper,  of  a  printed  report  of  a  committee  of  investigation  distributed  to  the 
shareholders  in  a  company,  the  judge  charged  the  jury  that  although  the  publica. 
tion  by  the  defendant  was  unauthorized,  yet,  as  the  publication  to  the  shareholders 
was  authorized,  they  might  give  nominal  damages.  (Davis  v.  Cutbush,  1  Fost.  <fe 
F.  487.)  In  an  action  against  a  newspaper  for  publishing  a  libellous  item  of  news, 
the  proprietors  not  having  acted  with  express  malice,  and  not  having  shown 
negligence  in  their  choice  of  reporters,  held,  that  exemplary  damages  should  not 
have  been  allowed.     (Detroit  Daily  Post  Co.  v.  McArthur,  16  Mich.  447.) 

6  Armstrong  v.  Pierson,  8  Clarke  (Iowa),  29. 


§  289.]  DAMAGES.  487 

sideration  the  expense  to  which  the  plaintiff  has  been  put 
by  being  compelled  to  come  into  court  to  vindicate  his 
character.1  It  has  been  usual,  in  the  English  courts,  to 
tell  the  jury  that  they  are  not  to  consider  the  effect  of 
verdict  upon  the  costs.2  In  New  York  it  seems  always 
to  have  been  the  rule  to  inform  the  jury  of  the  effect  of  the 
the  verdict  upon  the  costs.3  And  at  least  some  of  the 
judges  in  the  courts  of  England  are  disposed  to  follow  the 
rule  prevailing  in  the  New  York  courts,  where,  on  a  motion 
for  a  new  trial,  on  the  ground  that  the  jury  had  given 
a  verdict  for  a  small  amount  of  damages,  under  the 
erroneous  impression  that  it  was  an  amount  sufficient  to 
carry  costs,  the  rule  was  refused ;  but  by  Pollock,  Ch.  B. 
"  There  is  no  reason  why  the  jury  should  not  be  informed, 
if  they  ask  it,  (what  amount  of  verdict  will  carry  costs), 
as  it  is  a  part  of  the  law,  but  if  they  do  not  ask  it,  and 
they  have  given  their  verdict,  it  cannot  be  disturbed 
merely  because  they  did  not  know  it." 4     In  a  case  tried 

]  Hicks  v.  Foster,  13  Barb.  663.  In  Wakelin  v.  Morris,  2  Fost.  &  F.  27;  the 
defendant's  counsel  proposed  to  put  a  question  to  plaintiff's  attorney,  as  to  what 
would  be  the  probable  cost  to  the  defendant  if  the  verdict  was  for  nominal  damages 
only,  and  the  question  was  admitted. 

a  The  effect  of  the  verdict  upon  the  costs  is  to  be  laid  entirely  out  of  consideration, 
and  with  which  the  jury  have  nothing  to  do.  (Mears  v.  Griffin,  2  Sc.  N.  S.  15.) 
And  so  recently  as  1868,  sittings,  after  Mich.  Term,  in  an  action  of  libel,  (Bradlaugh 
v.  Brooks),  the  jury  after  retiring  to  consider  their  verdict,  returned  into  court  and 
inquired  of  the  judge  (Blackburn  J.),  what  amount  of  damages  would  carry  costs, 
he  declined  to  inform  them,  saying  that,  according  to  law,  the  costs  follow  the  verdict 
and  a  verdict  ought  not  be  given  which  depended  upon  the  law  as  to  costs.  And  in 
Wilson  v.  Reed,  2  Fost.  &  F.  149,  the  court  refused ;  to  inform  the  jury  what  amount  of 
damages  would  carry  costs.  In  California  the  same  rule  seems  to  prevail.  See  Shay 
v.  Toulumne  Water  Co.,  6  Cal.  286. 

3  Elliott  v.  Brown,  2  Wend.  500;  Nolton  v.  Moses,  3  Barb.  31;  Waffle  v. 
Dillenback,  38  N.  Y.  53. 

4  Kilmore  v.  Abdoolah,  27  Law  Jour.  307  Ex.  But  on  the  same  occasion  Bram- 
well,  B.  said,  "  The  jury  have  no  right  to  give  a  verdict  with  reference  to  any  thing 
else  than  the  injury  sustained  by  the  plaintiff."  Where,  on  the  execution  of  a  writ 
of  inquiry  in  an  action  for  slander,  the  jury  were  incorrectly  informed  by  the  under- 
sheriff  as  to  the  amount  of  damages  which  would  carry  costs,  and  they  found  a 
a  verdict  for  less  than  forty  shillings,  it  was  held  no  ground  for  a  new  writ  of 
inquiry,  or  for  increasing  the  amount  of  damages.     (Grater  v.  Collard,  6  Dowl.  503.) 


4S8  PBOCEEDINGS   IN"   AX   ACTION.  [Ch.  XI. 

before  Erie,  C.  J.,  lie  charged  tlie  jury.  "  If  you  believe 
that  the  plaintiff  really  was  required  to  bring  this  action 
to  vindicate  his  character,  then  you  may  think  it  proper  to 
give  substantial  damages  which  will  carry  costs.  But  if 
you  think  that  it  was  not  so,  and  that  the  words  did  no 
real  injury,  you  can  find  nominal  damages  which  will  not 
carry  costs,"  and  upon  the  jury  asking  what  sum  would  car- 
ry costs,  the  judge  answered,  "  I  am  not  aware  that  there  is 
any  thing  to  preclude  my  telling  you,"  and  he  told  them.1 
In  an  action  of  slander  for  words  imputing  unchastity 
to  the  plaintiff,  the  jury  were  instructed  that  the  rule  with 
respect  to  damages  was,  to  give  such  as  were  commensurate 
with  the  injury  sustained  by  the  acts  charged  and  proved 
against  the  defendants ;  that  if  the  plaintiff  was  an  in- 
nocent and  virtuous  female,  and  her  character  had  been 
destroyed  by  the  slanders  of  the  defendant  and  others, 
they  might  give  liberal  damages  ;  but  if  the  plaintiff  had 
so  destroyed  her  character,  by  her  own  lewd  and  dissolute 
conduct,  as  to  have  sustained  no  injury  from  the  words 
spoken  by  the  defendant,  they  might  give  only  nominal 
damages.  This  was  held  correct.2  Where  the  defendant 
suffers  judgment  to  go  by  default,  and  the  damages  are 
assessed  by  a  sheriff's  jury,  although  the  plaintiff  gives 
no  evidence  of  damage,  the  jury  are  not  confined  to  nomi- 
nal damages.3  Where  the  language  is  actionable,  per  86, 
the  mere  fact  that  special  damage  is  alleged  will  not  prevent 
the  plaintiff,  on  failing  to  establish  his  special  damages, 
from  recovering  general  damages.4 

§  290.  In  general,  prospective  damages  are  not  to  be 
allowed,  and  damages  arising  after  suit  brought  are  not  to 


1  Wakelin  v.  Norris,  2  Fost.  &  F.  26  ;  and  see  in  a  note  to  that  case. 
3  Flint  v.  Clarke,  13  Conn.  361.     See,  Mitigation. 

3  Cottrell  v.  Jones,  11  C.  B.  713;   3  B.  <fe  C.  427. 

4  Smith  o.  Thomas,  2  Bing.  N.  C.  380;  Browne  Smith,   13  C.  B.   569;  Evans 
v.  Harris,  1  Hurl.  &  N.  254. 


§  290.]  DAMAGES.  489 

be  taken  into  account,1  although  it  has  been  held  that  the 
jury  are  to  consider  the  probable  future  as  well  as  the 
actual  past ; 2  and  in  an  action  of  libel  upon  copartners, 
held  the  jury  might  consider  the  prospective  injury  to  the 
copartnership ; 3  and  in  a  case  of  libel  on  the  plaintiff  in 
connection  with  a  steam  vessel,  he  was  allowed  to  show 
diminished  earnings  of  the  vessel  subsequent  to  the  bring- 
ing of  the  action.4  Where,  in  consequence  of  the  defama- 
tion the  plaintiff  lost  an  office  dependent  on  the  will  of 
his  superior,  it  was  held  the  jury  were  to  consider  both 
the  nature  and  tenure  of  the  office,  and  not  give  the  value 
of  an  annuity  certain.5  Where  the  damage  proved  was 
the  loss  of  a  situation  of  fifty  pounds  a  year,  and  the  jury 
gave  a  verdict  for  sixty  jpounds,  the  court  refused  to  dis- 
turb it.6  Mental  suffering  and  sickness  induced  by  the 
publication  are  not  such  natural  consequences  of  defama- 
tion as  to  amount  to  special  damage,7  and  in  a  joint 
action  by  partners,  it  was  held  that  no  damages  could  be 
given  for  any  injury  to  the  private  feelings  of  the  plaint- 
iffs, but  only  for  such  injury  as  they  had  sustained  in  their 
joint  trade.8  The  jury  must  give  some  damages,9  and 
where  actual  ill-will  is  shown,  they  may  give  exemplary 

•  1  Goslin  v.  Corry,  7  Mann.  &  G.  343  ;  Keenliolts  v.  Becker,  3  Denio,  346 ;  Phil.  R. 
R.  Co.  v.  Quigley,  21  How.  U.  S.  Rep.  202;  Mayne  on  Damages,  217. 

2  True  v.  Plumley,  36  Maine,  466 ;  Harrison  v.  Pearce,  1  Fost.  &  F.  567. 

3  Gregory  v.  Williams,  1  Carr.  &  K.  658. 

4  Ingram  v.  Lawson,  6  Bing.  X.  C.  212. 
6  Lever  v.  Torrey,  1  Murray,  350. 

6  Jackson  v.  Hopperton,  16  C.  B.  N.  S.  829. 

7  Terwilliger  v.  Wands,  17  X.  Y.  54;  Wilson  «.  Goit,  17  X.  Y.  442;  overruling 
Brandt  v.  Towsley,  13  Wend.  253 ;  Fuller  v.  Fenner,  16  Barb.  333,  and  Swift  «/. 
Dickerman,  31  Conn.  285. 

'  Haythorn  v.  Lawson,  3  Car.  &  P.  196.    In  an  action  of  libel  against  two  pi 
one  of  them  suffered  judgment  by  default,  the  other  pleaded  "  not  guilty"  questioned 
if  the  damages  could  be  jointly  assessed.     Note  to  Watts  v.  Fraser,  7  A.  &  E.  233. 

9  Jewett  v.  Whitney,  43  Maine,  242  ;  although   it  maybe  shown  that  defendant 
was  benefited  by  the  defamation.     It  will  not  be  permitted  the  defendanl  to  atti  mpl 
to  show  that  the  plaintiff  was  benefited  by  the  alleged  libel,  such  an  attempt  was 
made  in  Fry  v.  Bennett,  5  Sandf.  76;  and  sue  Baylis  v.  Lawrence,  11  Ad.  &  El 
See  post,  Mitigation. 
32 


490  PROCEEDINGS    IN    AN   ACTION.  [Cll.    XI. 

or  vindictive  damages.1  The  damages  cannot  exceed  the 
amount  claimed,  and  a  direction  to  that  effect  is  proper ; 2 
and  where  the  plaintiff  had  a  verdict  for  more  damages 
than  he  claimed  in  his  declaration,  the  court  refused  him 
leave  to  amend  the  declaration  so  as  to  keep  the  verdict.3 

§  291.  Where  there  are  several  counts,  and  a  verdict 
is  entered  generally  on  all  the  counts,  and  entire  damages 
are  given,  if  one  count  is  bad,  the  judgment  will  be  ar- 
rested, and  a  venire  de  novo  awarded.4  But  if  the  judge 
who  tried  the  cause  certifies  that  the  evidence  applied 
only  to  the  good  counts,  or  it  is  otherwise  apparent  that 
the  defective  count  has  not  influenced  the  amount  of  the 
verdict,  the  verdict  will  be  amended  by  confining  it  to 
the  good  counts.  Where  there  is  any  doubt  as  to  any 
one  count,  it  is  prudent  to  have  the  damages  assessed 
severally,  or  to  abandon  the  doubtful  count,  and  take  a 
verdict  on  the  other  counts  only.5     By  a  defective  count 

1  Taylor  v.  Church,  8  N.  T.  452;  Hunt  v.  Bennett,  4  E.  D.  Smith,  647 ;  19  N.  Y. 
173;  Fry  v.  Bennett,  4  Duer,  247;  Kinney  v.  Hosea,  3  Hairing.  397;  Gilbreath  v. 
Allen,  10  Ired.  67;  Cramer  v.  Noonan,  4  Wis.  231;  Hosley  v.  Brooks,  20  111.  115; 
Knight  v.  Foster,  39  N.  Hamp.  576.  The  right  to  give  vindictive  damages  has  been 
questioned.  See  Austen  v.  Wilson,  4  Cush.  273  ;  Taylor  v.  Carpenter,  2  Wood.  <fc  M. 
1 ;  2  Greenl.  Ev.  tit.  Damages ;  Sedgwick  on  Damages,  Appendix,  1st  edit,  and  4th 
edit.  p.  532.  It  was  held  in  an  action  for  assault  that  vindictive  damages  might  be 
given,  although  the  defendant  had  previously  been  indicted  for  the  same  assault,  and 
fined  $250.     (Cook  v.  Ellis,  6  Hill,  407.) 

2  Pool  v.  Devers,  30  Ala.  672. 

3  Curtis  v.  Lawrence,  17  Johns.  111.  The  declaration  may,  it  seems,  be  amended 
on  the  terms  of  submitting  to  a  new  trial  (Bowman  v.  Early,  3  Duer,  691),  if  the  de- 
fendant insists  on  a  new  trial.     (Corning  v.  Corning,  6  X.  Y.  98.) 

4  Cox  v.  Lee,  Law  Rep.  IV,  Ex.  287,  38  Law  Jour.  219,  Ex. 

*  See  2  Stark.  Sland.  107 ;  Heard  on  Libel,  §§  303,  304;  Fry  v.  Bennett,  28  N.  Y. 
326  ;  Holt  v.  Scholefield,  6  T.  R.  694  ;  Lloyd  v.  Morris,  Willes  R.  443  ;  Bennett  v. 
Wells,  12  Mod.  420 ;  Grant  v.  Astle,  2  Doug.  730 ;  Empson  v.  Griffin,  11  Adol.  <fe  El. 
187 ;  Leach  v.  Thomas,  2  M.  &  W.  427 ;  Gould  v.  Oliver,  2  Scott,  N.  R.  630 ;  2  M.  & 
G.  208;  Ayrey  v.  Fearnsides,  4  M.  &  W.  168;  Lewin  v.  Edwards,  9  M.  &  W.  720; 
Day  v.  Robinson,  1  Ad.  <fc  El.  558 ;  2  N.  <fe  M.  884;  Angle  v.  Alexander,  7  Bing.  119 ; 
Eddowes  v.  Hopkins,  1  Doug.  377;  Reg.  v.  Verrier.  12  Adol.  <fe  El.  331,  overruling 
Williams  v.  Breedon,  1  Bos.  &  Pul.  329;  Burnett  v.  Wells,  12  Mod.  420;  see  also 
Union  Turnpike  Co.  v.  Jenkins,  1  Caines,  392 ;  Hopkins  v.  Beadle,  id.  347 ;  Lyle  v. 
Clason,  id.  583;  Livingston  v.   Rogers,  id.   587;    Stafford  v.  Green,  1  Johns.  565; 


§  292.]  VERDICT.  401 

is  meant  a  count  which  shows  no  cause  of  action ;  a  count 
which  contains  actionable  words,  together  with  words  not 
actionable,  would  not  be  defective  so  as  to  affect  a  verdict 
on  such  count.  In  such  a  case,  it  is  intended  that  the 
verdict  applied  only  to  the  actionable  words.1 

§  292.  Where  there  is  a  misjoinder  of  several  counts, 
and  general  damages  are  assessed,  judgment  will  be  ar- 
rested. In  cases  of  misjoinder  of  counts,  the  verdict  may 
be  taken  for  the  plaintiff  on  the  counts  properly  joined, 
and  for  the  defendant  on  the  other  count  or  counts,  or  the 
plaintiff  may  enter  a  nolle  prosequi  as  to  the  count  or 
counts  improperly  joined.2  Where  there  were  two  counts 
upon  the  same  words,  but  published  at  different  times,  a 
general  verdict  for  the  plaintiff  was  upheld.3  A  general 
verdict  on  five  counts  held  not  responsive  to  either  count.4 
A  verdict  that  "  the  defendant  spoke  and  published  the 


Cooper  v.  Bissell,  15  Johns.  318;  Sayre  v.  Jewett,  12  Wend.  135;  Addington  v.  Allen, 
11  Wend.  374;  Case  v.  Buckley,  15  Wend.  327;  Trisarri  v.  Clements,  3  Bing.  432; 
Neal  v.  Lewis,  2  Bay,  204;  Hogg  v.  Wilson,  1  Nott  &  McC.  216;  Kennedy  v.  Lowry, 
1  Binney,  397  ;  Shafer  v.  Kintzer,  id.  537;  Paul  v.  Harden,  9  S.  &  R.  23 ;  Smith  v. 
Cleveland,  6  Mete.  332 ;  Baker  v.  Sanderson,  3  Pick.  348  ;  Cornwall  v.  Gould,  4  Pick. 
444;  Patten  v.  Greeley,  17  Mass.  182;  Barnard  v.  Whiting,  7  Mass.  358;  Barnes  v. 
Hurd,  11  Mass.  57;  Sullivan  v.  Holker,  15  Mass.  374  ;  Clark  v.  Lamb,  6  Pick.  512; 
Kingsley  v.  Bill,  9  Mass.  198 ;  Dryden  v.  Dryden,  9  Pick.  546;  Hayter  v.  Moat,  '2  M. 
<fc  W.  66 ;  Gregory  v.  Duke  of  Brunswick,  7  Sc.  K  R.  972;  Harker  v.  Orr,  10  Watts, 
245  ;  Ruth  v.  Kutz,  1  Watts,  489 ;  Gosling  v.  Morgan,  32  Penns.  273  ;  Stitzell  v.  Rey- 
nolds, 59  Penns.  488;  Pemberton  v.  Colls,  16  Law  Jour.  Rep.  403,  Q.  B. ;  11  Jurist, 
1011;  Cook  v.  Cox,  3  M.  &  S.  110 ;  Clement  v.  Fisher,  7  B.  &  Cr.  459  ;1M.4  R.  281. 
A  verdict  supported  by  one  count  held  good.  Marshall  v.  Gunter,  6  Rich.  419 ; 
Graves  v.  Waller,  19  Conn.  90;  Bloom  v.  Bloom,  5  S.  &  R.  391 ;  Hoag  v.  Hatch,  8  , 
Monthly  Law  Rep.  N.  S.  686. 

1  Mayne  on  Damages,  237;  Bridges  v.  Horner,  Carthew,  230;  Nicholls  v.  Reeve,  1 
Freeman,  83;  Cheetham  v.  Tillotson,  5  Johns.  430;  Griffith  v.  Lewis,  8  Q.  B.  814,  7 
Adol.  <fc  El.  N.  S.  67;  Alfred  v.  Farlow,  8  Q.  B.  853 ;  Lloyd  v.  Morris,  Wffles,  443 ;. 
Hughes  v.  Rees,  4  M.  &  W.  204;  Campbell  v.  Lewis,  3  Barn.  &  Aid.  392;  Edwards 
v.  Reynolds,  Hill  &  Denio,  Sup.  53 ;  Sherry  v.  Freeking,  4  Duer,  452. 

2  Corner  v.  Shew,  3  M.  &  W.  350;  Kitchenman  v.  Skeel,  3  Ex.  19;  .Kn'ghtley  v. 
Birch,  2  M.  &  S.  533. 

3  Bradley  v.  Kennedy,  2  Greene,  231. 

4  Cock  v.  Weatherby,  5  S.  &  M.  333. 


492  PROCEEDINGS    IN    AN   ACTION.  [Ch.  XI. 

words  in  the  complaint  specified,"  was  upheld.1  And  so 
of  a  verdict  that  found  "  the  defendant  guilty  of  wilful 
and  malicious  slander." 2  In  an  action  for  libel  there 
were  eight  special  pleas  of  justification,  and  issue  thereon; 
the  jury  found  for  the  plaintiff  on  three  issues,  and  for  the 
defendant  on  the  residue  of  the  pleas;  the  verdict  was 
held  void  because  it  did  not  assess  the  plaintiff's  damages 
on  the  issues  found  for  him.3  A  plea  of  justification  in  an 
action  for  a  libel  contained  three  material  allegations,  as 
to  one  of  which  the  jury  expressed  themselves  of  opinion 
that  the  proof  failed.  The  judge  told  them  that,  to  war- 
rant a  finding  in  favor  of  the  defendant,  they  must  be 
satisfied  that  all  three  of  the  allegations  were  substantially 
made  out.  The  jury,  after  two  hours'  deliberation,  re- 
turned a  verdict  for  the  defendant  upon  that  plea.  The 
court  refused  to  set  it  aside.4 

§  293.  As  the  amount  of  damages  in  an  action  for 
slander  or  libel  is  always  a  subject  for  the  exercise  of  the 
sound  discretion  of  the  jury,  who  may  give  more  or  less 
according  to  their  conclusions  from  the  whole  case  respect- 
ing the  motives  of  the  publisher,5  a  verdict  in  such  an 
action  will  not  be  set  aside  for  excessive  damages  unless 
there  is  some  suspicion  of  unfair  dealing,6  or  "  unless  the 
case  be  such  as  to  furnish  evidence  of  prejudice,  partiality 
or  corruption  on  the  part  of  the  jury."7    The  case  must  be 

1  Carlock  v.  Spencer,  2  Eng.  12. 

2  Benaway  v.  Congre,  3  Chand.  214;  and  see  Harding  v.  Brooks,  5  Pick.  244; 
Scott  v.  Cook,  1  Duvall,  314. 

3  Clement  v.  Lewis,  3  B.  <fc  B.  297  ;    3  B.  &  A.  702. 

4  Napier  v.  Daniell,  3  Sc.  417;  2  Hodges,  187;  3  Bing.  N.  C  77.  "Where  a  plaint- 
iff is  entitled  as  against  the  defendant  to  be  relieved  from  a  verdict  obtained  against 
him,  the  court  will  not  abstain  from  interfering  on  the  ground  of  the  lien  of  the 
plaintiff's  attorney  for  bis  costs.     (Symons  v.  Blake,  2  C  M.  &  R.  416.) 

6  Davis  v.  Davis,  2  N.  &  M.  81 ;  Trabue  v.  Mayo,  3  Dana,  138. 

6  Mayson  v.  Sheppard,  12  Rich.  Law,  (S.  Car.)  254. 

7  Lawyer  v.  Smith,  1  Denio,  207 ;  Hartin  v.  Hopkins,  9  Johns.  30  ;  Jarvis  v. 
Hathaway,  3  Johns.  180;  Rundell  v.  Butler,  10  Wend.  119  ;  Bailey  v.  Dean,  5  Barb. 


§  293.]  NEW    TRIAL.  493 

very  gross,  and  the  damages  enormous,  to  justify  ordering 
a  new  trial  on  a  question*  of  damages.1  A  new  trial  was 
granted  on  payment  of  costs,  and  under  peculiar  circum- 
stances, where  the  verdict  was  ,£150,2  and  so  where  the 
damages  were  $5,000.3  There  is  nothing  to  forbid  the 
granting  a  new  trial,  in  a  proper  case,  for  insufficient 
damages,  but  the  granting  a  new  trial  for  insufficient 
damages  is  of  rare  occurrence.  Where  the  plaintiff  was  a 
minister  of  the  gospel,  and  the  damages  only  one  farthing, 
the  court  refused  a  new  trial.4    The  court  may  order  a 


297;  Spencer  v.  McMasters,  16  111.  405.  Where  the  receivers  in  an  administration 
suit  in  conducting  a  gazette  belonging  to  the  testator  published  a  libel,  and  the  chief 
clerk,  acting  under  the  direction  of  the  vice-chancellor,  certified  the  amount  of 
damages  payable  for  the  injury,  an  application  to  the  vice-chancellor  to  increase  the 
amount  of  damages  on  account  of  their  inadequacy  was  dismissed,  but  as  the  libel 
■was  published  through  the  carelessness  of  the  receivers,  they  were  saddled  with  the 
costs  of  the  application.  (Stubbs  v.  Marsh,  15  Law  Times,  N.  S.  312;  see  Martin  v. 
Van  Schaick,  4  Paige,  4*79.) 

1  Tillotson  v.  Cheetham,  2  Johns.  63  ;  Coleman  v.  Southwick,  9  Johns.  45  ;  South- 
wick  v.  Stevens,  10  Johns.  443  ;  Root  v.  King,  7  Cow.  613  ;  Moody  v.  Baker,  5  Cow. 
351 ;  Cole  v.  Perry,  8  Cow.  214;  Ostrom  v.  Calkins,  5  Wend.  263;  Douglas  v.  Tousey, 

2  Wend.  352  ;  Cook  v.  Hill,  3  Sand.  341 ;  Riley  v.  Nugent,  1  A.  K.  Marsh.  431 ;  Ryck- 
man  v.  Parkins,  9  Wend.  470.  The  court  refused  to  grant  a  new  trial  for  excessive 
damages  where  the  amount  was  severally  $1,000  (Bell  v.  Howard,  4  Litt.  117) ;  $300, 
charge  horse  stealing  (Faulkner  v.  Wilcox,  2  Litt.  369);  $2,736,  charge  perjury  - 
(Sanders  v.  Johnson,  6  Blackf.  51) ;  $500,  charge  horse  stealing  (Teagle  v.  Deboy,  8 
Blackf.  134);  £750,  charge  against  a  minister  of  the  gospel  (Highmore  v.  Harrington, 

3  C  B.  N.  S.  142);  £350  (Wakley  v.  Cooke,  4  Ex.  511);  $334  (Ross  v.  Ross,  5  B. 
Monroe,  20);  $212  (St.  Martin  v.  Desnoyer,  1  Min.  156);  $4,000  (Litton  v.  Young,  2 
Mete.   (Ky.),   558);   $15,000  (Trumbull  v.  Gibbons,  N.   Y.   Judicial  Repository,  1) 
$10,000  (Fry  v.  Bennett,  4  Duer,  247);  £1,000  (Gfroever  v.  Hoffman,  16  Up.  Can.  Q, 
B.  R.  441);  $707  (Shute  v.  Barrett,  7  Pick.  82);  $591  (Oakes  v.  Barrett,  7  Pick.  82) 
$3,500  (McDougall  v.  Sharp,  1  City  Hall  Recorder,  154);  $1,400  (Bodwell  v.  Osgood 

3  Pick.  379;  and  see  Baker  v.  Briggs,  8  Pick.   122;   Sargent  v. ,  5  Cow.  106 

Mayne  on  Dam.  347;  Chambers  v.  Caulfield,  6  East,  256;  Hewlett  v.  Crutuhley,  5 
Taunt.  277;  Coffin  v.  Coffin,  4  Mass.  1 ;  Neal  v.  Lewis,  2  Bay,  204;  Edgar  v.  Newell, 
24  Up.  Can.  Q.  B.  Rep.  215;  Myers  v.  Curry,  id.  470;  Treanor  v.  Donahue,  9  Cush. 
228 ;  Wood  v.  Gunston,  Style,  465  ;  referred  to  Clapp  v.  Hudson  River  R.  R.  Co.  19 
Barb.  465  ;  Bruton  v.  Downes,  1  Fost.  &  F.  668. 

a  Swan  v.  Clelland,  13  Up.  Can.  Q.  B.  Rep.  335 ;  and  the  plaintiff  having  died 
since  the  verdict  was  rendered,  defendant  was  put  under  terms  not  to  assign  death  of 
plaintiff  as  error,  if  on  new  trial  the  verdict  was  for  the  plaintiff. 

8  Netle  v.  Harrison,  2  McCord,  230.  New  trial  where  damages  $2,500  ^Freeman 
v.  Tinsley,  50  111.  497). 

4  Kelly  v.  Sherlock,  Law  Rep.  I,  686,  Q.  B.  and  see  Mears  v.  Griffin,  2  Sc.  N.  S. 


494  PROCEEDINGS   EST    AN   ACTION.  [Ch.  XI. 

new  trial  unless  the  plaintiff  consents  to  reduce  the 
damages.  Thus  where  the  damages  were  $600,  the  court 
ordered  a  new  trial,  unless  the  plaintiff  would  consent  to 
reduce  them  to  $2< 


§  294.  A  new  trial  will  not  be  granted  because  a 
verdict  for  defendant  should  have  been  for  plaintiff  with 
nominal  damages.2  A  new  trial  will  be  granted  to  admit 
newly  discovered  evidence  to  support  a  defense  of  not 
guilty,  but  not  to  support  a  justification.3  A  new  trial 
was  refused  where  since  the  verdict  for  the  plaintiff  he 
had  been  convicted,  partly  on  the  evidence  of  the  defend- 
ant, of  the  offense  charged.4  A  new  trial  was  refused 
where  a  witness  for  the  plaintiff  had  since  the  trial  been 
convicted  of  perjury.5  Where  plaintiff  obtained  a  verdict 
for  one  shilling  damages,  in  consequence,  as  he  supposed, 


15  ;  Irwin  v.  Cook,  24  Texas,  244.  "  There  appears  to  be  no  case  in  an  action  of  slander 
or  libel  in  which  a  new  trial  has  been  granted  on  such  a  ground" — by  counsel  in  Fors- 
dike  v.  Stone,  Law  Rep.  Ill,  607,  C.  P.  In  that  case  the  charge  was  that  the  female 
plaintiff  had  been  guilty  of  adultery,  and  the  damages  were  one  shilling,  a  new  trial 
was  refused,  and  it  was  said  that  no  new  trial  would  be  granted  for  insufficient 
damages  unless  there  had  been  a  mistake  in  point  of  law  on  the  part  of  the  presiding 
judge,  or  a  mistake  in  the  calculation  of  figures,  or  misconduct  by  the  jury.  In 
Ohio  (Code  §  298),  it  is  provided :  A  new  trial  shall  not  be  granted  on  account  of 
smallness  of  damages  in  an  action  for  injury  to  the  person  or  reputation.  New  trial 
because  damages  too  small  refused  (Rendall  v.  Hayward,  5  Bing.  N.  C  424 ;  L'd 
Gower  v.  Heath,  Barnes'  Notes,  445 ;  Hayward  v.  Newton,  2  Str.  940).  New  trial 
granted  because  damages  too  small,  and  because  error  in  charge  (Kenney  v.  Mc- 
Laughlin, 71  Mass.  3). 

1  Potter  v.  Thompson,  22  Barb.  87.  Such  a  proceeding  held  improper.  (Cassin 
v.  Delany,  6  Trans.  App.  202;  6  Abb.  Fr.  R.  N.  S.  1 ;  Moffat  v.  Sackett,  11  N.  Y. 
522.)  The  court  refused  a  new  trial,  but  reduced  the  amount  of  damages.  (Gostling 
v.  Brooks,  2  Fost.  &  F.  76.)  In  the  case  of  Attorney-general  of  Jersey  v.  Ennis,  an 
action  of  slander  mentioned  in  a  note  to  Warren's  Law  Studies,  the  plaintiff  appealed 
to  the  privy  council  from  a  verdict  for  the  defendant  given  by  the  Royal  Court  at 
Jersey,  the  privy  council  not  only  set  aside  the  verdict,  but  ordered  the  verdict  to  be 
entered  for  the  plaintiff,  with  £50  damages. 

2  Patton  v.  Hamilton,  12  Ind.  256;  Rundell  v.  Butler,  10  Wend.  119.  See,  how- 
ever, Levi  v.  Milne,  4  Bing.  195. 

3  Beers  v.  Root,  9  Johns.  264. 

4  Symons  v.  Blake,  2  C  M.  <fe  R.  416  ;  4  Dowl.  Pra.  Cas.  263 ;  1  Gale,  182. 

5  Eakins  v.  Evans,  3  Up.  Can.  Q.  B.  Rep.  383,  0.  S. 


§§  295-6.]  costs.  495 

of  the  admission  of  improper  evidence,  it  was  held  that 
having  recovered  a  verdict,  he  could  not  insist  on  his  ob- 
jections to  evidence,  and  a  new  trial  was  refused.1 

§  295.  Actions  for  slander  and  libel  are  in  the  nature 
of  a  penal  action,  and  though  the  jury  find  for  the  defend- 
ant against  the  weight  of  evidence,  a  new  trial  is  never 
[seldom]  granted.2  To  warrant  a  new  trial  on  the  ground 
that  the  verdict  is  against  evidence,  it  must  be  a  very 
clear  case.3  A  new  trial  was  granted  because  the  lano-ua^e 
published  did  not  warrant  the  innuendoes ; 4  and  so  where 
the  innuendo  was  disproved.6 

§  296.  In  New  York,  if  the  plaintiff  recover  less  than 
$50  damages,  he  can  recover  no  more  costs  or  disburse- 
ments than  damages.6  The  defendant  may,  at  any  time 
before  verdict,  offer  to  allow  judgment  to  be  taken  against 
him  for  a  certain  sum  with  costs ;  the  non-acceptance  by 
plaintiff  of  such  an  offer  will  subject  him  to  costs  subse- 
quent to  its  service,  unless  he  recover  a  more  favorable 
judgment.7  In  England,  if  the  damages  in  an  action  for 
slanderous  words  are  less  than  forty  shillings,  the  plaintiff, 
.  by  statute  21  James  I,  recovers  no  more  costs  than 
damages ;  the  statute  was  held  not  to  apply  to  actions 

1  Rogers  v.  Munns,  25  Up.  Can.  Q.  B.  Rep.  153;  and  see  Smith  v.  Kerr,  1  Barb. 
155  ;  Case  v.  Marks,  20  Conn.  248.  Where  plaintiff  had  a  verdict  for  five  shillings,  a 
new  trial  was  granted,  the  court  recommending  a  stet  processus.  (Shaver  v.  Linton, 
22  Up.  Can.  Q.  B.  17V.) 

1  Ex-parte  Bailey,  2  Cow.  479 ;  Hartin  v.  Hopkins,  9  Johns.  36 ;  and  see  Hurtert 
v.  Weines,  27  Iowa,  134. 

3  Root  v.  King,  7  Cow.  013,  affirmed  4  Wend.  113  ;  Paddock  v.  Salisbury,  2  Cow. 
811;  Kelly  v.  Partington,  4  B.  &  Ad.  700;  Fisher  v.  Clement,  10  B.  &  Cr.  472; 
Blackburn  v.  Blackburn,  4  Bing.  395 ;  1  M.  &  P.  33 ;  Broom  v.  Gosden,  1  C.  B.  728; 
Hunt  v.  Bennett,  4  E.  I).  Smith,  657. 

4  Yrisarri  v.  Clement,  3  Bing.  432. 

6  Johnston  v.  McDonald,  2  Up.  Can.  Q  B.  Rep.  200.  There  cannot  be  a  new  trial 
upon  one  of  several  issues.     (Morrison  v.  Harmer,  4  Sc.  530.) 

6  Code  of  Pro.  §  304. 

7  Code  of  Pro.  8  385. 


490  PROCEEDINGS     IN   AN   ACTION. 

where  the  special  damages  are  the  gist  of  the  action,  nor 
to  slander  of  title  nor  to  libel.1 

§  296a.  Where  a  plaintiff  in  an  action  for  slander  or 
libel  has  had  an  opportunity  of  trying  the  action  upon  its 
merits,  and  has  consented  to  a  nonsuit,  and  afterwards 
brings  a  second  action  for  substantially  the  same  cause, 
leaving  the  costs  of  the  former  action  unpaid,  the  court 
may  stay  the  proceedings  in  the  second  action  until  the 
costs  of  the  first  action  are  paid,2  and  this,  although  the 
second  action  is  in  a  different  court  to  that  in  which  the 
first  action  was  brought.3 


1  As  to  costs  in  the  courts  of  England,  Skelton  v.  Seward,  1  Dowl.  411 ;  Skinner  v. 
Shoppee,  6  Bing.  N.  C.  131 ;  Simpson  v.  Hardie,  2  M.  &  W.  84;  5  Dowl.  304;  Foster 
v.  Pointer,  8  M.  &  W.  395 ;  1  Dowl.  28  ;  9  C.  &  P.  718 ;  Empson  v.  Fairfax,  3  Nev.  & 
P.  385  ;  Dodd  v.  Crease,  2  Cr.  &  M.  223;  4  Tyrw.  74  ;  2  Dowl.  269;  Lafone  v.  Smith, 
4  Hurl.  &  Nor.  158;  Saville  v.  Jardine,  2  H.  Black.  531;  Halford  v.  Smith,  4  East, 
567 ;  Richards  v.  Cohen,  1  DowL  533  ;  Goodall  v.  Ensall,  3  Dowl.  743 ;  Grenfel  v. 
PiersoD,  1  Dowl.  400 ;  Turner  v.  Hortou,  Willes,  438 ;  Andrews  v.  Thompson,  8  Bing. 
431 ;  Forbes  v.  Gregory,  1  Cr.  &  M.  435 ;  1  Dowl.  679  ;  Harrison  v.  Bush,  5  E.  &  B. 
344;  Biddulph  v.  Chamberlain,  17  Q.  B.  351 ;  Kelly  v.  Partington,  5  B.  &  Ad.  645; 
2  Nev.  &  M.  460;  Prynne  v.  Browne,  1  Dowl.  N.  S.  680;  2  Stark.  Sland.  113 ;  Stat. 
58  Geo.  Ill,  ch.  30 ;  and  by  statute  3  and  4  Vict.  c.  24,  §  2,  on  a  certificate  by  the 
judge  that  the  injury  was  wilful  and  malicious,  the  plaintiff  may  recover  costs,  al- 
though the  verdict  is  for  less  than  forty  shillings ;  as  to  this  see  Forsdike  v.  Stone, 
Law  Rep.  Ill,  607,  C  P. ;  and  see  30  and  31  Vict.  ch.  142  ;  Ings  v.  London  and  So. 
West.  R.  R.,Law  Rep.  IV,  17,  C  P. ;  Gray  v.  West,  Law  Rep.  IV,  175,  Q.  B. ;  Sampson 
v.  Mackay,  id.  643;  Marshall  v.  Martin,  Law  Rep.  V,  239,  Q.  B.  As  to  costs  in 
Vermont,  see  Nichols  v.  Packard,  16  Verm.  147.  In  Indiana,  see  Skinner  v.  Bron- 
nenburg,  18  Ind.  363.    In  Arkansas,  Hill  v.  Patterson,  Hemp.  173, 

8  Hoare  v.  Dickson,  7  C  B.  164. 

3  Prowse  v.  Loxdale,  3  B.  &  S.  896. 


CHAPTER  Xn. 

PAETIES. 

Question  as  to  parties  anticipated — Action;  by  alien  — 
Outlaw — Rebel — Executors  or  administrators — Married 
woman — Husband  and  loife — Partners — General  rule 
as  to  joinder — Action  against  husband  and  wife — 
Contribution. 

§  297.  The  questions  who  may  sue  and  who  may  be 
sued,  of  course  generally  depend  upon  the  prior  questions 
of  rights  and  liabilities,  and  therefore,  to  some  extent,  the 
question  of  parties  has  been  anticipated.1  Subject  to  any 
exceptions  which  have  been  or  may  be  mentioned,  the 
rules  as  to  parties  which  prevail  in  actions  for  torts  gen- 
erally apply  to  the  actions  for  slander  and  libel. 

§  298.  It  was  held  that  an  alien  friend,  although 
residing  in  a  foreign  country,  might  maintain  an  action 
for  a  libel  published  in  England.2  Where  the  plaintiff 
in  an  action  for  libel  was  at  the  commencement  of  the 
action  an  outlaw,  of  which  the  defendant  was  ignorant 
until  after  notice  of  trial,  the  court  after  the  trial  stayed 
the  proceedings,  but  removed  the  stay  on  the  outlawry 
being  reversed.3  In  an  unreported  case  in  New  York 
(Cummings  v.  Bennett),  it  being  shown  that  the  plaintiff 
in  an  action  for  libel  was  an  unpardoned  rebel,  the  court 

1  Ante,  §§  115,  119,  notes.  "Where  there  were  two  actions  for  the  same  libel,  one 
against  the  editor  and  the  other  against  the  publisher  of  the  newspaper  in  which 
the  publication  was  made,  an  application  to  consolidate  was  denied.  (Cooper  v. 
"Weed,  2  How.  Pra.  R.  40;   and  sue  post,  note  4,  p.  500.) 

8  Pisani  v.  Lawson,  6  Bing.  N.  C.  90 ;  8  Dowl.  57 ;  8  Sc.  182. 

8  Somers  v.  Holt,  3  Dowl.  Pr.  Cas.  500 ;  see  Reg.  v.  Lowe,  8  Ex.  697. 


498  parties.  [Ch.  XII. 

at  special  term  made  an  order  dismissing  the  complaint, 
but  the  general  term  reversed  the  order.  In  an  action  for 
words  imputing  murder,  the  court  allowed  the  defendant 
until  the  next  term  to  plead,  upon  the  ground  that  the 
plaintiff  was  to  be  tried  for  the  alleged  murder  on  an 
indictment  then  pending.1 

§  299.  By  the  common  law,  actions  of  tort  die  with 
the  person,  and  this  rule  applies  to  actions  for  slander2 
and  libel,  except  in  those  States  where  a  different  rule  is 
prescribed  by  statute.  In  New  York,  actions  of  tort, 
except  slander  and  libel,  survive.3  But  the  death  of  a 
plaintiff  after  a  judgment  in  his  favor,  and  pending  an 
appeal  from  the  judgment,  does  not  abate  the  appeal,  and 
the  personal  representatives  of  the  deceased  may  be  sub- 
stituted as  respondents.4  By  statute  in  Maine,  actions 
for  slander  and  libel  survive,  and  may  be  maintained  in 
the  name  of  the  executor  or  administrator.5  A  rio-ht 
of  action  for  slander  or  libel  is  not  assignable,  and  does 
not  pass  under  a  general  assignment  to  a  receiver  by  a 
judgment  creditor  or  to  an  assignee  in  bankruptcy.6 

1  Gibson  v.  Niven,  Barnes'  Notes,  224. 

2  1  Wm.  Saund.  316  a,  6th  ed. ;  Nettleton  v.  Dinehart,  5  Cush.  543 ;  Walters  v. 
Nettleton,  5  Cush.  544;  Walford  on  Parties,  1392,  1449.  At  common  law,  where 
there  is  jud  ^ment  against  the  defendant,  and  he  appeals,  and  after  the  appeal  the  defend- 
ant dies,  the  judgment  dies  with  him.     (Faith  v.  Carpenter,  33  Geo.  79.) 

3  2  Rev.  Stat,  of  N.  Y.  447,  §§  1,  2.  By  statutes  in  Ohio  and  Maryland,  the  right 
of  action  for  slander  or  libel  does  not  survive.  In  Ireland  v.  Champneys,  4  Taunt. 
884,  an  action  for  libel,  after  interlocutory  judgment  and  writ  of  inquiry  executed, 
the  plaintiff  died,  held  that  final  judgment  could  not  be  entered,  the  suit  having 
abated  by  the  plaintiff's  death.     See  Kramer  v.  "Waymark,  Law  Rep.  1,  Ex.  243. 

4  This  was  done  in  Sanford  v.  Bennett,  24  X.  Y.  20 ;  and  as  to  death  of  plaintiff, 
see  Miller  v.  Gunn,  7  How.  Pr.  R.  380. 

6  Nutting  v.  Goodridge,  46  Maine,  82.  In  Iowa,  by  statute,  an  action  of  libel  is 
not  abated  by  the  death  of  the  defendant.  (Carson  v.  McFadden,  10  Iowa  (2  With.), 
91.)  Death  of  a  defendant  after  an  appeal,  held  to  abate  the  appeal.  (Long  v.  Hitch- 
cock, 3  Ham.  274.) 

6  Hudson  v.  Plets,  11  Paige,  180 ;  and  see  Dowling  v.  Brown,  4  Irish  Law  Rep.  N. 
S.  265 ;  Benson  v.  Flowers,  Sir  W.  Jones,  215;  Howard  v.  Crowther,  8  M.  ifc  W.  601 ; 
Drake  v.  Beekham,  11  M.  <fe  W.  315,  overruling  s.  c.  8  M.  <fc  W.  846. 


§§  300-1.]  parties.  499 

§  300.  By  statute  in  New  York,  a  married  woman  may- 
sue  alone  and  without  her  husband,  for  slander  or  libel ; 1 
and  so,  under  certain  conditions,  in  Pennsylvania,2  and  in 
Scotland.3  It  has  been  held  that  the  New  York  Statute 
does  not  authorize  a  suit  for  slander  by  a  wife  against  her 
husband.4  And  it  was  held  in  Pennsylvania,  that  a  mar- 
ried woman  could  not  maintain  an  action  for  slander  pub- 
lished at  the  instance  of  her  husband.5 

§  301.  Independently  of  any  statutory  provision  for 
language  actionable  per  se,  published  concerning  a  mar- 
ried woman,  or  concerning  a  woman  who  afterwards  mar- 
ries, the  action  should  be  brought  in  the  name  of  the 
husband  and  wife.6  In  such  a  case  the  damage  is  to  both 
plaintiffs,  and  the  right  of  action  in  case  of  the  death  of 
the  husband  survives  to  the  wife;  but  if  the  wife  dies 
before  verdict,  the  action  abates.7  For  language  concern- 
ing a  married  woman,  but  actionable  only  because  of 
special  damage  to  the  husband,  the  husband  must  sue 
alone.8    These  rules  are  not  affected  by  the  fact  that  the 


1  Laws  of  N.  Y.  1860,  ch.  90;  Id.  1862,  ch.  172. 

5  Rangier  v.  Hummell,  37  Perm.  St.  R.  130. 

s  Ewing  v.  Cullen,  Boyd  Kinnear's  Dig.  H.  L.  Cas.  188. 

4  Freethy  v.  Freethy,  42  Barb.  641  ;  as  to  the  right  of  a  wife  to  protection  against 
slander  by  her  husband,  see  Deut.  xxii.  13,  22. 

6  Tibbs  v.  Brown,  2  Grant's  Cas.  (Penn.)  39. 

6  1  Stark.  Slan.  349  ;  Ebersol  v.  Krug,  3  Binney,  555 ;  Newton  v.  Rowe,  8  Sc.  N. 
R.  26 ;  Dengate  v.  Gardiner,  4  M.  &  W.  5 ;  Grove  v.  Hart,  Sayre,  33  ;  Baldwin  v. 
Flower,  3  Mod.  120;  Long  v.  Long,  4  Barr,  29. 

7  Stroop  v.  Swartz,  12  S.  &  R.  76;  and  see  Smith  v.  Hixon,  Str.  977,  and  3  T.  R. 
627.  Case  for  words  by  husband  and  wife  against  defendants,  husband  and  wife; 
pending  the  action  the  male  defendant  died,  and  his  widow  remarried.  The  court 
inclined  that  the  writ  abated,  but  took  time  to  advise.  ^White  v.  Harwood,  Style,  138  i 
Viner's  Abr.  Earon  and  Feme,  A.  a.) 

8  Williams  v.  Holdridge,  22  Barb.  396;  Gazynski  v.  Colburn,  11  Cush.  10;  Grove 
v.  Hart,  Bull.  N.  P  7;  Saville  v.  Sweeney,  1  Nov.  &  M.  254;  4  B.  <fe  Adol.  514; 
Horton  v.  Byles,  1  Sid.  387 ;  Long  v.  Long,  4  Barr,  29  ;  1  Stark.  Slan.  350 ;  Bash  v. 
Sommer,  20  Penn.  St.  R.  159;  Coleman  v.  Harcourt,  1  Lev.  140;  Klein  v.  Ileutz,  2 
Liter,  633. 


500  PARTIES.  [CL  XII. 

husband  and  wife  live  apart  under  a  deed  of  separation.1 
Where  an  action  was  brought  by  a  wife  living  apart  from 
her  husband  under  articles  of  separation,  in  the  names  of 
her  husband  and  herself,  for  defamatory  words  spoken  of 
her,  it  was  held  that  a  release  of  the  cause  of  action  exe- 
cuted by  the  husband  was  a  bar  to  the  suit,  although  in 
the  articles  of  separation  the  husband  had  covenanted 
that  suits  might  be  brought  in  the  joint  names  of  him- 
self and  his  wife,  for  any  injury  to  the  person  or  character 
of  the  wife.2  For  a  charge  of  a  joint  larceny  by  husband 
and  wife,  semble  the  husband  should  sue  alone,  because 
the  wife  is  prima  facie  not  liable  criminally  for  a  larceny 
committed  in  the  presence  of  her  husband.8 

§  302.  Where  the  language  published  concerns  both 
husband  and  wife,  the  husband  may  sue  alone  for  the 
injury  to  him,  and  the  husband  and  wife  may  sue  jointly 
for  the  injury  to  the  wife.4  In  an  action  by  husband  and 
wife,  a  plea  that  the  plaintiffs  were  not  man  and  wife  at 
the  time  of  the  commencement  of  the  action  is  a  good 
plea  in  bar.3  But  it  is  not  a  defense  to  an  action  by 
husband  and  wife  that  the  plaintiffs  were  not  married  at 
the   time  of  the  publication  complained  of.6     Where  the 

1  Beach  v.  Ranney,  2  Hill,  309. 

2  Beach  v.  Beach,  2  Hill,  260. 

3  Bash  v.  Sommer,  20  Penn.  St.  R.  159.  And  where  the  defendant  charged  plain- 
tiff's wife  with  keeping  a  bawdy  house,  it  was  held  the  husband  might  sue  alone, 
as  the  words  charged  an  indictable  offense,  for  which,  if  true,  the  husband  was  liable  to 
be  punished.     (Coward  v.  Wellington,  7  C.  &  P.  531.) 

4  Gazynski  v.  Colburn,  11  Cush.  10;  Bash  v.  Sommer,  20  Penn.  St.  R.  159; 
Eniington  v.  Gardiner,  1  Selw.  N.  P.  301;  Smith  v.  Hobson,  Style,  112:  Ebersoll 
v.  Krug,  3  Binney,  555 ;  Hart  v.  Crow,  7  Blackf.  351,  ante,  note  1  p.  153.  The  court 
will  not  order  such  actions  to  be  consolidated.  Anon.  Selwyn  N.  P.  301 ;  Swithin 
v.  Vincent,  2  Wils.  227  ;  Subley  v.  Mott,  Bull.  N.  P.  5.  Now  by  statute  15  and  16  Vict, 
ch.  40,  in  an  action  by  husband  and  wife  for  injury  to  the  wife,  in  respect  of  which 
she  is  necessarily  joined  as  a  co-plaintiff,  the  husband  may  add  thereto  claims  in  his 
own  right,  and  separate  actions  brought  in  respect  of  such  claims  may  be  consolidated. 
In  case  of  the  death  of  either  plaintiff,  such  suit,  so  far  as  relates  to  the  causes  of  action, 
if  any,  which  do  not  survive,  shall  abate. 

5  Chantler  v.  Lindsey,  16  M.  <fe  W.  82;  4  Dowl.  &  L.  339. 

6  Spencer  v.  McMaster,  16  111.  405  ;  and  see  Benaway  v.  Congre,  3  Chand.  214.    But 


§§  303-4.]  paeties.  501 

husband  and  wife  are  improperly  united  as  plaintiffs,  and 
there  is  no  demurrer,  the  error  is  cured  by  verdict,1  or  by 
omitting  to  demur.2 

§  303.  For  language  published  concerning  partners  in 
the  way  of  their  trade,  all  the  partners  may  or  should 
join ; 3  but  if  the  language  concerns  and  injuriously  affects 
either  partner  individually,  he  may  sue  alone.4  The 
general  rule  is  that  where  the  injury  is  several,  each  person 
injured  must  sue  separately  and  alone  ;  as  if  one  say,  "  A. 
and  B.  murdered  C,"  or  "  Either  A.  or  B.  murdered  C," 
A.  and  B.  cannot  maintain  a  joint  action.5 

§  304.  For  a  publication  by  a  married  woman  of  de- 
famatory language,  before  or  during  coverture  the  action 
must  be  against  her  and  her  husband.6     A  husband  and 


in  an  action  by  husband  and  wife,  for  words  imputing  adultery  to  the  wife,  it 
was  held  necessary  to  aver  that  they  were  husband  and  wife  at  the  time  of  the 
publication.     (Ryan  v.  Madden,  12  Verm.  51.) 

1  Russell  i'.  Come,  1  Salk.  119;  2  L'd  Raym.  1031;  Todd  v.  Bedford,  11  Mod. 
264;  Lewis  v.  Babcock,  18  Johns.  443. 

s  Code  of  Pro.  N.  Y.  §  145.  This  defect  cannot  be  insisted  upon  under  a 
demurrer  that  the  complaint  does  not  state  a  cause  of  action.  (Eldridge  v.  Bell,  12 
How.  Pra.  R.  547.)  No  action  can  be  maintained  for  the  price  of  libellous  pictures. 
(Fores  v.  Johnes,  4  Esp.  97.)  A  printer  cannot  recover  for  printing  a  libel.  (I'oplett 
v.  Stockdale,  R.  &  M.  337;  Bull  v.  Chapman,  8  Ex.  104.)  If  a  printer  undertake  to 
print  a  book,  and  as  the  work  proceeds  finds  the  matter  is  defamatory,  he  may 
decline  to  continue  the  work,  and  can  recover  for  the  part  of  the  work  which  is  not 
defamatory.  (Clay  v.  Yates,  1  Hurl.  &  N.  73.)  Nor  could  an  action  be  maintained 
for  breach  of  a  contract  to  furnish  manuscript  of  defamatorv  matter.  (Gale  v. 
Leckie,  2  Stark.  R.  107.)  Or  for  pirating  a  libellous  book.  (Stockdale  v,  Onwhyn, 
5  B.  &  C  173.)  See  Campbell's  Lives  of  the  Chancellors,  X,  255,  reviewing  the  deci- 
sions of  Lord  Eldon,  who  refused  to  protect  the  copy -right  of  alleged  lihellous  works. 

3  Cook  v.  Batchellor,  3  B.  <fc  P.  150;  2  East,  426;  Le  Fanu  v.  Malcolmson,  1  Ho. 
of  L'ds  Cas.  637;  13  Law  Times,  61;  Foster  v.  Lawson,  3  Bing.  452;  11  Moore, 
360;  Browl.  Rediv.  81;  Ilaythorn  v.  Lawson,  3  Car.  <fe  P.  196;  Pechell  v.  Watson, 
8  M.  &  W.  691  ;    2  Wm.  Saund.  117,  6th  ed.  see  note  to  §  118,  ante. 

4  Taylor  v.  Church,  1  E.  D.  Smith,  279  ;  Harrison  v.  Bevington,  8  Car.  &  P.  70S  ; 
Robinson  v.  Merchant,  7  Q.  B.  918;  Fidler  v.  Delavan,  20  Wend.  57;  Longman  v. 
Pole,  1  M.  A  M.  223 ;  Tait  v.  Culbertson,  57  Barb.  9. 

6  Smith  v.  Cooker,  Cro.  Car.  513  ;  10  Mod.  198.  As  to  one  action  against  several 
for  one  libel,  see  Harris  v.  Huntington,  2  Tyler,  147;  Watts  v.  Fraser,  7  C.  cfc  P.  369  ; 
Miller  v.  Butler,  6  Cush.  71;    Glass  v.  Stewart,  10  S.  &  R.  222,  ante,  note  1  p.  497. 

6  Head  v.  Briscoe,  5  Car.  &  P.  484;  and  see  ante,  note  1  p.  153 ;   Swithin  v.  Vin- 


502  PARTIES. 


wife  may  be  jointly  sued  for  a  joint  publication  of  written 
defamatory  matter.5 

§  305.  In  certain  cases  the  plaintiff  is  entitled  to  elect 
de  melioribus  damnis  (§  119),  or  as  to  which  of  several 
parties  he  will  sue,  but  neither  in  such  cases  nor  in  any 
other  case  can  there  be  any  contribution  between  the 
parties,  it  being  a  general  rule  of  law  that  there  is  no 
contribution  between  wrong-doers.1 


cent,  2  Wils.  22*7;  Burcher  v.  Orchard,  Style,  349;  2  Wm.  Saund.  117  d.  6th  ed. 
Anderson  v.  Hill,  53  Barb.  238 ;  Hawk  v.  Harman,  5  Binney,  43  ;  Horton  v.  Payne, 
27  How.  Pr.  R.  574. 

2  Catterall  v.  Kenyon,  3  Q.  B.  310;  Keyworth  v.  Hill,  3  B.  &  Aid.  685. 

4  See  Merryweather  v.  Nixon,  8  T.  R.  186  and  notes  thereto,  2  Smith's  Lead.  Cas. 
and  in  addition  Moseati  v.  Lawson,  7  C.  <fc  P.  32 ;  Andrews  v.  Murray,  33  Barb. 
354,  citing  Miller  v.  Fenton,  11  Paige,  18;  Coventry  v.  Barton,  17  Johns.  142; 
Peck  v.  Ellis,  2  Johns.  Ch.  131;  Pearson  v.  Skelton,  1  M.  &  W.  504:  Hunt  v.  Lane, 
9  Ind.  248;  Minnes  v.  Johnson,  1  Duvall,  (Ky.)  171;  Silvers  v.  Nerdlinger,  30  Ind. 
33.  No  contract  will  be  implied  to  indemnify  a  party  against  the  consequences  of  an 
illegal  act,  e.  g.  the  publication  of  a  libel  (Shackell  v.  Rosier,  3  Sc.  59  ;  2  Bing.  N. 
C.  634.)  And  semhle  the  proprietor  of  a  newspaper  convicted  and  fined  for  the 
publication  of  a  libel  in  his  paper,  which  libel  was  inserted  without  his  knowledge 
or  consent  by  the  editor,  has  no  right  of  action  against  the  editor  for  the  damages 
sustained  through  such  conviction.  (Colburn  v.  Patmore,  1  C.  M.  &  R.  83 ;  4  Tyr. 
677.)  One  cannot  take  security  to  be  indemnified  against  the  consequences  of  an 
illegal  act.  (Domat  Civil  Law,  B'k  iii.  tit.  4,  §  1,  div.  viii ;  and  same  book  and  title, 
§  5,  div.  1;  and  see  Howe  d.  Buffalo  &  Erie  R.  R.  38  Barb.  124;  St.  John  v. 
St.  John's  Church,  15  Barb.  346.)  A  promise  to  indemnify  one  for  publishing  a 
libel,  is  void.  (Arnold  v.  Clifford,  2  Summer,  238.)  An  indemnity  against  the 
consequences  of  an  illegal  act  already  done  is  binding.  (Griffiths  v.  Hardenburgh, 
41  N.  T.  469,  citing  Doty  v .  "Wilson,  14  Johns.  379;  Kneeland  v.  Rogers,  2  Hall, 
579.) 


CHAPTER  XIII. 

PLEADING. THE  COMPLAINT. 

General  requisites  of  a  complaint — Complaint  for  language 
concerning  a  person  only — Inducement — Colloquium — 
Publication  —  Matter  published  —  Innuendo  —  Special 
damage — Several  counts — Supplemental  complaint. 

§  306,  The  complaint  corresponds  to  tlie  declaration 
in  the  common  law  system  of  pleading.  Its  general 
requisites  are  that  it  must  state  (1)  the  name  of  the 
court  in  which  the  action  is  pending ;  (2)  the  names  of 
the  parties;  (3)  the  county  in  which  it  is  desired  the 
issues  shall  be  tried;  (4)  the  facts  which  constitute  the 
cause  of  action ;  (5)  a  demand  of  relief.  It  must  be 
subscribed  by  the  plaintiff  or  his  attorney,  and  may,  at 
the  option  of  the  plaintiff,  be  verified.  Of  these  several 
requisites  we  purpose  to  consider  in  detail  only  the  fourth — 
the  statement  of  the  facts  which  constitute  a  cause  of 
action. 

§  307.  The  statement  of  a  cause  of  action  must  neces- 
sarily differ  more  or  less  according  to  the  difference  in  the 
state  of  facts  of  each  particular  case.  But  there  are 
certain  allegations  essential  in  every  case  to  the  sufficiency 
of  such  a  statement ;  we  will  show  what  are  these  allega- 
tions, and  endeavor  to  explain  the  rules  by  which  their 
sufficiency  may  be  tested.  We  premise  by  observing  that 
we  address  ourselves  exclusively  to  the  statement  of  a  cause 
of  action  for  slander  or  libel  concerning  the  person.  Such  a 
statement  may  be  conveniently  considered  under  the  follow- 
ing heads :  (1)  The  inducement ;  (2)  The  colloquium ; 
(3)  The  act  of  publication  ;  (4)  The  statement  of  the 
defamatory  matter  published ;  (5)  The  innuendoes ;  (6) 
The  damages. 


504  PLEADING.  [Ch.  Xm. 

§  308.  We  attempted  in  a  previous  chapter  (Ch.  vii) 
to  explain  (1)  that  the  actionable  quality  of  language  was 
dependent  upon  its  construction,  and  (2)  how  the  con- 
struction may  be  affected  by  a  variety  of  extrinsic  circum- 
stances. It  is  the  office  of  the  inducement  to  narrate  the 
extrinsic  circumstances  which,  coupled  with  the  language 
published,  affects  its  construction  and  renders  it  action- 
able ;  where  standing  alone  and  not  thus  explained,  the 
language  would  appear  either  not  to  concern  the  plaintiff, 
or  if  concerning  him  not  to  affect  him  injuriously.1  This 
being  the  office  of  the  inducement,  it  follows  that  if  the 
language  published  does  not  naturally  and  per  se  refer  to 
the  plaintiff  nor  convey  the  meaning  the  plaintiff  contends 
for ;  or  if  it  is  ambiguous  or  equivocal,  and  requires  expla- 
nation by  some  extrinsic  matter  to  show  its  relation  to 
the  plaintiff,  and  make  it  actionable,  the  complaint  must 
allege  by  way  of  inducement  the  existence  of  such  extrin- 
sic matter;2  but  that  where  the  language  published  is 

1  "  Inducement  is  the  statement  of  the  facts  out  of  which  the  charge  arises,  or 
which  are  necessary  or  useful  to  make  the  charge  intelligible."  (Tindal,  Ch,  J.,  Tav- 
erner  v.  Little,  5  Bing.  N.  C.  678.) 

2  Inducement  is  necessary  where  the  language  does  not  naturally  and  per  se  con- 
vey the  meaning  which  the  plaintiff  would  attribute  to  it,  and  where  a  reference  to 
some  extrinsic  fact  is  necessary  to  explain  it.  (Dorsey  v.  Whipps,  8  Gill,  457;  Fry 
v.  Bennett,  5  Sandf.  54 ;  Hull  v.  Blandy,  1  Y.  &  J.  480 ;  Gosling  v.  Morgan,  32  Penn. 
St.  E.  273;  Galloway  v.  Courtney,  10  Rich.  Law  (S.  Car.)  414;  The  State  v.  Neese,  2 
TayL  270;  Cannon  v.  Phillips,  2  Sneed  (Tenn.)  185 ;  Edgerly  v.  Swain.  32  N.  Hamp. 
478 ;  Smith  v.  Gafford,  31  Ala.  35 ;  Lumpkins  v.  Justice,  1  Smith  (Ind.),  322.)  Where 
the  language  is  claimed  to  be  ironical,  it  must  be  so  alleged  in  the  inducement. 
(Boydell  v.  Jones,  4  M.  &  W.  446;  7  Dowl.  Pra.  Cas.  210.)  In  slander  the  words 
stated  in  the  declaration  were,  "  Thou  set  fire  to  those  buildings,  and  thou  wilt  never 
be  easy  till  thou  hast  told  it."  There  was  no  introductory  averment  that  the  houses 
had  been  feloniously  burned.  A  rule  for  arresting  the  judgment  was  made  absolute. 
(Rigby  v.  Heron,  1  Jur.  558.)  A  complaint  on  a  charge  that  plaintiff  had  carried 
away  a  deposition  taken  before  a  justice  of  the  peace,  must  show  that  the  deposition 
was  taken  in  a  proceeding  in  which  the  justice  had  jurisdiction,  otherwise  the  carry- 
ing away  the  deposition  would  not  be  any  crimiual  offense.  (Ayres  v.  Covell,  18 
Barb.  260.)  Where,  in  an  action  of  slander  brought  by  an  unmarried  female,  the 
plaintiff's  petition  alleged  that  the  defendant  had  charged  her  with  having  given 
birth  to  a  child,  without  any  averments  showing  that  the  hearers  understood  that 
the  language  used  conveyed  a  charge  of  bastardy,  or  imputed  a  want  of  chastity  to 
the  plaintiff,  to  which  petition  the  defendant  demurred,  it  was  held  that  the  demurrer 


§  309.]  THE    COMPLAINT.  505 

actionable  per  se,  where  there  is  no  ambiguity,  either  in 
respect  to  the  person  whom  the  language  concerns  or  in 
respect  to  the  actionable  quality  of  the  language,  that  in 
such  cases  no  inducement  is  necessary.1  Hence  it  will  be 
perceived  that  inducement  is  not,  in  every  case,  essential 
to  the  sufficiency  of  a  statement  of  a  cause  of  action, 
but  in  those  cases  only  where,  without  the  facts  contained 
in  the  inducement,  the  publication  would  not  naturally 
and  per  se  refer  to  the  plaintiff  nor  convey  the  meaning  the 
plaintiff  contends  for,  nor  be  construed  as  actionable. 

§  309.  In  England  the  Common  Law  procedure  act 
has  abrogated  the  necessity  of  any  matter  of  inducement 
in  order  to  show  the  defamatory  meaning  of  the  language 
published,  and  enacts  that  the  plaintiff  may  aver  that  the 
matter  complained  of  was  used  in  a  defamatory  sense, 
specifying  such  defamatoiy  sense,  without  any  prefatory 
averment  to  show  how  such  matter  was  used  in  that 
sense,  and  such  averment  shall  be  put  in  issue  by  the 
denial  of  the  alleged  libel  or  slander ;  and  where  the  mat- 
ter set  forth,  with  or  without  the  alleged  meaning,  shows 
a  cause  of  action,  the  declaration  shall  be  sufficient.2 

should  be  sustained.  (Wilson  v.  Beighler,  4  Iowa,  42V.)  A  charge  that  plaintiff  had 
"  trapped  three  foxes,"  was  by  the  aid  of  inducement  made  actionable,  (Foulger  v. 
Newcomb,  Law  Rep.  II,  Ex.  327.) 

1  No  inducement  is  necessary  where  (1)  the  language  is  prima  facie  actionable 
per  se.  (Dorsey  v.  Whipps,  8  Gill,  457 ;  McGough  v.  Rhodes,  7  Eng.  625.)  (2)  "Where 
the  language  in  its  ordinary  acceptation  imports  a  charge  of  crime.  (Robinson  v 
Keyser,  2  Foster  (N.  H.),  323;  Bricker  v.  Potts,  12  Penn.  St.  R.  200.)  And  see 
Smith  v.  Hamilton,  10  Rich.  Law  (S.  Car.),  44;  Goodrich  v.  Davis,  11  Mete.  473. 
As  if  the  words  impute  a  charge  that  the  plaintiff  burnt  his  barn,  with  intent  to 
defraud  the  insurers,  it  is  not  necessary  to  aver  that  the  barn  was  insured,  nor  to 
prove  that  it  was  insured.  (Case  v.  Buckley,  15  Wend.  327.)  And  generally  it  is 
not  necessary  to  aver  facts  implied  by  the  alleged  defamatory  language.  If  one  say 
of  J.  S.  "  He  hath  killed  his  cook,"  it  need  not  be  averred  that  J.  S.  had  any  cook. 
(Holt  v.  Taylor,  Sty.  66 ;  and  see  Billing  v.  Knight,  2  Bulst.  42.)  "  Thou  hast  forged 
the  will  of  R." — it  need  not  be  averred  that  R.  was  dead,  it  is  implied.  (Dorrel  v. 
Jay,  Vent.  149.)  "He  hath  robbed  the  Hockly  Butcher,"  need  not  be  averred  there 
is  any  Hockly  Butcher,  for  if  there  is  not,  the  fault  is  the  greater.  (Smith  v.  Wil- 
liams, Comb.  247.)    See  post,  %  315,  and  ante,  note  2,  p.  169. 

a  15  and  16  Vict.  ch.  76;  Finlason's  Com.  Law  1'roc.  Act,  137.  See  Hemmingsw. 
33 


506  PLEADING.  [Ch.  Xm. 

§  310.  In  New  York,  the  Code  of  Procedure  of  that 
State  dispenses  with  the  necessity  of  any  inducement 
to  show  that  the  plaintiff  is  the  person  referred  to,  by 
providing  that  "In  an  action  for  libel  or  slander  it 
shall  not  be  necessaiy  to  state  in  the  complaint  any  ex- 
trinsic facts  for  the  purpose  of  showing  the  application  to 
the  plaintiff  of  the  defamatory  matter  out  of  which  the 
cause  of  action  arose,  but  it  shall  be  sufficient  to  state 
generally  that  the  same  was  published  or  spoken  concern- 
ing the  plaintiff,  and  if  such  allegation  be  controverted  the 
plaintiff  shall  be  bound  to  establish  on  trial,  that  it  was  so 
published  or  spoken."1  (§  316.)  This  statute  merely  dis- 
penses with  the  inducement  to  show  the  application  of  the 
language  to  the  plaintiff;  it  does  not  dispense  with  the 
necessity  of  averments  of  extrinsic  facts  to  show  the  mean- 
ing of  ambiguous  language.  And  in  New  York,  where 
the  language  published  is  not  defamatory  on  its  face,  and 
becomes  so  only  by  reference  to  extrinsic  facts,  the  exist- 
ence of  those  facts  must  be  alleged  in  the  complaint.2 

§  311.  The  matter  of  inducement,  when  necessary,  is 
usually  inserted  prior  to  the  statement  of  the  matter  pub- 
lished ;  but  this,  although  the  more  orderly  arrangement, 
is  not  essential ;  so  that  the  necessary  inducement  is  to  be 
found  in  the  complaint,  its  location  seems  immaterial.3 

Gosson,  27  Law  Jour.  Q,  B.  252;  Cox  v.  Cooper,  9  Law  Times,  K  S.  329;  Brembridge 
v.  Latimer,  12  Weekly  Rep.  818  ;  Watkin  v.  Hall,  Law  Rep.  IV,  Q.  B.  42.  The  effect 
of  the  decisions  appears  to  be  that  a  declaration  containing  one  count  with  an  in- 
nuendo, shall  be  taken  as  if  there  were  two  counts,  one  with  the  innuendo  and  one 
without  it. 

1  Code  of  Pro.  §  164. 

■  Pike  v.  Van  Wormer,  5  How.  Pra.  Rep,  171 ;  6  Id.  99 ;  Deas  v.  Short,  16  Id.  322 ; 
Fry  v.  Bennett,  5  Sandf.  54 ;  Blaisdell  v.  Raymond,  4  Abb.  Pra.  Rep.  446 ;  Hallock  v. 
Miller,  2  Barb.  630;  Carroll  v.  White,  33  Barb.  615;  Bullocks  Koon,  9  Cow.  30; 
and  in  Massachusetts,  the  law  of  1852,  ch.  312,  has  not  dispensed  with  the  necessity 
of  averring  the  facts  which  render  actionable,  words  not  actionable  per  se.  (Tebbetts 
v.  Goding,  9  Gray,  254.) 

8  Brittain  v.  Allen,  2  Dev.  120;  3  Id.  16V;  but  see  what  is  said  Caldwell  v.  Ray- 
mond, 2  Abb.  Pra.  Rep.  193. 


§§  312-13.]  THE   COMPLAINT.  507 

§  312.  Where  there  are  several  counts  in  the  com- 
plaint, each  count  must  be  prefaced  with  appropriate 
matter  of  inducement;  but  where  the  inducement  to  one 
count  is  applicable  to  a  subsequent  count,  it  may  be 
applied  to  such  subsequent  count  by  reference  thereto 
and  without  repeating  it.1  In  slander,  the  first  count 
charged  a  trial,  that  plaintiff  gave  evidence,  and  that  the 
words  were  spoken  of  and  concerning  the  trial,  &c. ;  and 
the  third  count  charged  that  the  words  therein  set  forth, 
were  published  of  the  plaintiff,  and  of  and  concerning  the 
action  tried  as  aforesaid,  and  of  and  concerning  the  evi- 
dence of  the  plaintiff  given  on  the  said  trial  as  aforesaid. 
Held,  that  the  third  count  was  sufficient.2 

§  312$.  Where  inducement  is  necessary,  it  should  be 
stated  in  a  traversable  form.3  Thus,  where  it  was  alleged, 
by  way  of  inducement,  that  reports  were  in  circulation 
about  the  plaintiff,  imputing  something  disgraceful,  to 
which  the  publication  referred,  it  was  held  insufficient, 
and  that  the  reports  themselves  should  have  been  set 
forth.4  And  where  the  alleged  libel  was  the  publication 
of  a  notice  that  the  plaintiff  had  married  E.  E.,  and  the 
inducement  relied  upon  as  making  the  publication  action- 
able was  that  E.  E.  was  a  common  prostitute,  but  the 
complaint  did  not  allege  this  fact  otherwise  than  as  fol- 
lows :  "  Married,  J.  W.  C."  (plaintiff  meaning)  "  to  E.  E." 
(meaning  a  public  prostitute  known  by  that  name),  "  that 
E.  E.  is  a  public  prostitute,  and  well  known  to  be  so," 
the  complaint  was,  on  demurrer,  held  insufficient.5 

'§  313.  Where  the  inducement  is  essential  to  the  suffi- 

1  Loomis  v.  Levick,  3  Wend.  205 ;  and  see  Tindall  v.  Moore,  2  Wilson,  114. 
8  Crookshank  v.  Gray,  20  Johns.  344.     See  post,  §  347. 

3  Caldwell  v.  Raymond,  2  Abb.  Pra.  Rep.  193.   And  see  Cass  v  Anderson,  33  Verm. 
(4  Shaw),  182;  Carter  v.  Andrews,  10  Tick.  1 ;  post,  §  350  a. 
*  Stone  v.  Cooper,  2  Denio,  293. 
B  Caldwell  v.  Raymond,  2  Abb.  Pra.  Rep.  193. 


508  PLEADING.  [CL  XIII. 

ciency  of  the  statement  of  the  cause  of  action,  and  where, 
without  the  facts  stated  as  inducement,  no  cause  of  action 
would  be  shown,  there  the  existence  or  non-existence  of 
those  facts  is  material,  and  of  course  may  be  controverted 
by  the  defendant ;  if  not  controverted  they  are  admitted, 
and  need  not  be  proved ; 1  if  controverted,  they  must  be 
proved,  as  part  of  the  plaintiff's  case.  But  where  the 
inducement  is  not  essential  to  the  sufficiency  of  the  state- 
ment of  the  cause  of  action,  and  where,  without  the  facts 
stated  as  inducement,  a  cause  of  action  can  be  shown, 
then  the  inducement  is  mere  surplusage,  redundant  mat- 
ter; no  material  issue  can  be  raised  upon  it;  it  should 
not  be  controverted,  and  if  controverted  need  not  be 
proved.2  An  example  of  superfluous  inducement  is  the 
preliminary  panegyric  upon  the  plaintiff's  character,  with 
which  it  is  so  customaiy  to  preface  all  complaints  for  slander 
or  libel.  As  it  is  unnecessary  to  the  statement  of  a  cause 
of  action  to  aver  the  plaintiff's  innocence,  either  by  a 
general  averment  of  good  character,  or  a  general  averment 
of  the  falsity  of  the  matter  published,  or  by  any  particular 
averment,  no  such  averment  can  be  made  the  subject  of 
an  issue.3 

§  314.  Where  the  charge  was,  "  He  (plaintiff)  is  a 
pitiful  fellow,  and  not  able  to  pay  his  debts,"  it  was  held 
not  necessary  to  aver,  by  way  of  inducement,  that  the 
plaintiff  was  no  pitiful  fellow,  and  was  able  to  pay  his 
debts;4  and  where  the  charge  was  that  plaintiff  had 
given  money  to  the  defendant  as  a  bribe,  it  was  held,  on 
motion  in  arrest  of  judgment,  not  necessary  for  the  plaintiff 
to  allege  that  he  did  not  give  the  money.      Where  fhe 

1  Duke  v.  Jostling,  3  Dowl.  618;  Chalmers  v.  Shackell,  6  C.  &  P.  475. 
3  Cox  v.  Thomason,  2  Cr.  &  J.  361. 

3  Strachey's  Case,  Sty.  118. 

4  Hooker  v.  Tucker,  Holt  R.  39. 

6  Bendish  v.  Lindsey,  11  Mod.  194. 


§  315.]  THE   COMPLAINT.  509 

charge  was  of  forging  a  note,  the  plaintiff  averred,  by 
way  of  inducement,  that  the  note  was  genuine,  this  was 
held  to  be  immaterial,  equivalent  only  to  the  customary 
allegation  of  innocence,  and  did  not  require  to  be  proved ; 1 
so,  where  the  charge  was  being  guilty  of  treason,  and  the 
plaintiff  alleged  his  innocence,  it  was  held  that  he  did  not 
thereby  impose  on  himself  the  burden  of  proving  the 
allegation.2 

§  315.  It  will  be  convenient  here  to  refer  to  the  rule 
of  pleading  and  of  evidence,  that  where  the  defamatory 
matter  states  expressly  or  by  necessary  implication,  the 
existence  of  certain  facts,  the  plaintiff  may  accept  the 
statement  and  rely  upon  it,  without  being  obliged  either 
to  allege  it  in  his  pleading  or  to  establish  its  truth  by 
evidence;3  the  defendant  is  estopped  from  denying  the 
truth  of  his  own  charge.  Thus,  where  the  words  of 
a  lawyer  were,  "  He  arresteth  without  taking  out  writs," 
or  "  He  is  a  knave  in  his  practice,"  it  was  held  that  these 

1  Harman  v.  Carrington,  8  Wend.  488. 

8  Coleman  v.  Southwick,  9  Johns.  45. 

8  Jones  v.  Stevens,  11  Price,  235;  ante,  note  1,  p.  505,  and  post,  Evidence.  For  the 
words,  "  That  is  the  man  who  killed  my  husband,"  no  allegation  of  the  death  of  the 
husband  is  necessary.  (Button  v.  Haywood,  8  Mod.  24.)  "  You  hired  J.  S.  to  forge 
a  bond;"  no  allegation  that  any  bond  was  forged  is  necessary.  (Cro.  Car.  33V.)  In 
an  action  by  husband  and  his  wife,  B.,  for  slander,  the  declaration  reciting  that  they 
were  lawfully  married,  and  that  she  was  sister  of  C,  and  that  the  defendant  falsely,  tfcc, 
spoke  of  and  concerning  the  wife  and  C,  that  they  were  not  only  brother  and  sister,  but 
man  and  wife;  held  that  the  plaintiff  was  not  bound  to  prove  the  introductory  aver- 
ment that  the  wife  was  the  sister  of  C,  and  that  the  words  importing  a  charge  of 
felony,  viz.,  bigamy,  were  actionable.  (Ileming  v.  Power,  10  Mees.  &  W.  564.)  De- 
fendant, on  being  reminded  by  plaintiff  of  a  law  suit  which  he  (defendant)  had 
recently  lost,  said,  "  Yes,  your  false  swearing  at  that  trial."  Being  told  that  he  had 
better  not  again  accuse  plaintiff  of  swearing  false,  he  said,  "  Any  man  who  professed 
to  be  a  Christian,  as  you  do,  and  went  into  the  box  and  swore  false,  as  you  did  at 
that  trial,  had  better  join  the  church  once  more,"  <fcc.  Defendant  also  said,  "The 
folks  who  belonged  to  (he  church,  and  built  tall  steeples,  thought  they  could  swear 
false,  or  do  anything  they  had  a  mind  to."  Held  that  the  Blander  admitted  that  a 
suit  was  pending,  and  it  was  to  be  intended  that  what  plaintiff  swore  to  was  mate- 
rial, and  that  the  words  were  sufficient  to  warrant-  a  finding  in  favor  of  the  plaintiff, 
without  proof  that  the  suit  was  in  a  court  of  compete  u1  jurisdiction,  or  that  plaintiff 
swore  falsely  with  a  corrupt  intent.     (Kern  v.  Towsley,  51  Barb.  386.) 


510  PLEADING.  [Cll.  XIII. 

words  implied  that  the  plaintiff  was  an  attorney,  and  dis- 
pensed with  any  inducement  of  that  fact.1  And  in  slan- 
der for  charging  the  plaintiff  with  the  crime  of  murder,  it 
is  not  necessary  to  allege,  as  inducement,  the  death  of  the 
person  said  to  he  murdered ; 2  and  generally  it  is  unneces- 
sary to  show  that  the  offense  charged  could  have  been 
committed,3  or  that  the  plaintiff  was  physically  capable  of 
committino*  the  crime  alleged  asrainst  him.4 

§  316.  As  the  plaintiff's  right  to  redress  depends  en- 
tirely upon  the  fact  that  the  defamatory  matter  concerned 
him  (§  131),  in  order  to  show  a  right  of  action,  that  fact 
must  appear  on  the  face  of  the  complaint.  Where  the 
language  published  was  unequivocal  and  directly  referred 
to  the  plaintiff,  the  colloquium,  of  which  presently,  was 
alone  sufficient  to  show  this  fact.  But  where  the  lan- 
guage was  ambiguous  in  respect  to  the  person  to  whom  it 
applied,  there,  formerly,  it  was  necessary ;  and  where  the 
common-law  system  of  pleading  prevails,  it  still  is  neces- 
sary to  state  as  inducement  the  circumstances  which  make 
it  apparent  that  the  language  does  concern  the  plaintiff; 5 
and  it  was  not  sufficient  to  aver  generally  that  the  lan- 
guage was  published  concerning  the  plaintiff.6  By  statute 
the  rule  is  otherwise  in  New  York.7 

1  Bell  v.  Thatcher,  Freem.  277.  And  so,  where  the  language  was,  "He  is  a  paltry 
lawyer,  and  plays  with  both  hands."    (2  Rolle  Rep.  85.) 

2  Tenney  v.  Clement,  10  N.  Hamp.  52,  and  see  Carter  v.  Andrews,  16  Pick.  1 ; 
Stone  v.  Clark,  21  Pick.  51 ;  Stallings  v.  Newman,  26  Ala.  300;  Eckert  v.  Wilson,  10 
S.  &  R.  44;  contra,  Chandler  v.  Holloway,  4  Porter,  17.     See  ante,  note  9,  p.  223. 

3  Colbert  v.  Caldwell,  3  Grant  (Penn),  181;  but  see  Sawyer  v.  Hopkins,  9  Shep.  268. 

4  Chambers  v.  White,  2  Jones'  Law  (N.  Car.),  383. 

6  Hale  v.  Blandy,  1  Y.  &  J.  480 ;  and  see  Brown  v.  Lamberton,  2  Binney,  34 ;  Van 
Vechten  v.  Hopkins,  5  Johns.  211 ;  Harper  v.  Delph,  3  Ind.  225  ;  Parker  v.  Raymond> 
3  Abb.  Pra.  R.  N.  S.  343. 

6  The  State  v.  Henderson,  1  Rich.  179. 

7  Ante,  §  310.  And  there  is  a  like  provision  in  the  law  of  Missouri  (Strieber  i'- 
Wensel,  19  Mis.  (4  Bennett),  513);  and  "Wisconsin  (Van  Slyke  v.  Carpenter,  7  Wis. 
173);  and  Iowa  (Swearingen  v.  Stanley,  23  Iowa,  115).  "A  distinct  averment  in 
regard  to  the  person  spoken  of,  and  a  clear  reference  of  the  calumnious  words  to  that 


§  317.]  THE    COMPLAINT.  511 

§  317.  We  have  seen  that  the  actionable  quality  of 
language  is  sometimes  affected  by  the  circumstance  that 
it  affects  the  plaintiff  in  some  certain  capacity  (§§  132, 
179) ;  when,  therefore,  the  plaintiff  claims  that  the  lan- 
guage is  actionable,  because  it  concerns  him  in  some  certain 
capacity  or  occupation,  and  it  does  not  upon  its  face  imply 
that  he  is  in  such  capacity  or  occupation  (§  315),  the  com- 
plaint should  properly  allege  by  way  of  inducement  that 
he  filled  such  capacity,  or  was  in,  or  carried  on,  or  exercised 
such  occupation  at  the  time  of  the  publication  complained 
of.  This  may  be  shown  by  an  averment  that  the  plain- 
tiff is  of  such  a  trade,  or  has  carried  on  or  exercised  it 
for  divers  years,  without  adding  last  part,1  because  a 
person  once  in  any  certain  occupation  is  presumed  to 
continue  therein.  (§  189.)  But  where  the  language 
affects  the  plaintiff  in  an  office  he  holds  during  pleasure, 
a  different  rule,  it  is  said,  prevails,  and  the  plaintiff's 
continuance  in  office  must  be  alleged.2  The  complaint 
need  not  allege  that  the  plaintiff  gains  his  livelihood  by 
his  occupation  (§  182),  nor  that  the  plaintiff  has  qualified 
himself  for  the  office  or  employment  in  which  he  is 
defamed.  Thus,  where  the  alleged  libel  concerned  a 
candidate  to  serve  in  Parliament,  it  was  held  that  the 

person,  is  all  that  is  required."  (Miller  v.  Parish,  8  Pick.  383.)  See  post,  §§  340, 
341,  and  1  Stark.  Slan.  390.  Of  what  is  there  stated  the  following  is  an  abridgment: 
Where  the  plaintiffs  name  is  mentioned,  though  a  further  description  be  given,  the 
general  averment  is  sufficient  (Woodruff  v.  Vaughan,  Cro.  Eliz.  429)  without  alleging 
that  the  further  description  applied  to  the  plaintiff;  as  where  the  speaking  was  alleged 
to  be  of  the  plaintiff,  and  the  words  were,  "  T."  (meaning  the  plaintiff) "  is  thy  brother." 
And  where  the  words  were,  "  Captain  Nelson  is  a  thief,"  held  not  necessary  to  allege 
that  plaintiff  was  a  captain  or  known  by  that  name.  Where  the  plaintiff  can  show 
he  was  intended,  he  can  maintain  the  action.  {Ante,  note  p.  163.)  Thus,  for  the 
words,  "  The  parson  of  Dale  is  a  thief,"  he  who  was  parson  of  Dale  at  the  time 
may  sue.  And  where  the  defendant  spoke  of  that  murderous  knave  Stoughton,  held 
that  one  Thomas  Stoughton  might  sue.     (Sheppard,  Action  of  Slander,  59.) 

'Tuthill  v.  Milton,  Yelv.  159;  Cro.  Jac.  222;  and  see  2  RolleR.  84;  Dodd  v. 
Robinson,  All.  63;  Collis  v.  Malin,  Cro.  Car.  282;  Beauinond  v,  Hastings,  Cro.  Jac. 
240. 

8  Tuthill  v.  Milton,  Yelv.  159  ;  Cro.  Jac  222;  and  see  Gallwey  v.  Marshall,  9  Ex. 
300. 


512  PLEADING.  '  [Cll.  XIII. 

declaration  need  not  set  out  the  writ  to  show  the  plaintiff 
was  such  candidate.1  But  the  occupation  of  the  plaintiff 
should  be  described  in  apt  terms.  Thus,  in  an  action  by 
a  barrister,  it  was  held  that  he  should  allege  he  was  homo 
consiltarius  et  in  jure  peritus,  and  that  it  was  not  sufficient 
to  allege  he  was  eruditus  in  lege.2  "  The  declaration 
ought  not  merely  to  state  that  such  scandalous  conduct 
was  imputed  to  the  plaintiff  in  his  profession,  but  also  to 
set  forth  in  what  manner  it  was  connected  by  the  speaker 
with  that  profession." s 

§  318.  Where  the  language  is  actionable  of  the 
plaintiff  as  an  individual,  then,  although  it  may  also 
affect  him  in  some  occupation,  it  is  not  necessary  to 
allege  as  inducement  that  the  plaintiff  exercised  such 
occupation ;  and  even  if  alleged,  it  need  not  be  proved, 
because  there  is  a  cause  of  action  without  it.  (§  179.)  4 
Thus,  in  an  action  for  setting  up  near  plaintiff's  house  an 
inscription  insinuating  that  it  was  a  house  of  ill-fame,  <fcc, 
the  declaration  alleged  that  the  plaintiff  earned  on  the 
business  of  a  retailer  of  wines ;  but  the  court  held,  that 
as  the  inscription  was  not  alleged  to  have  been  published 
concerning  the  plaintiff  as  a  retailer  of  wine,  it  might  be 
struck  out  of  the  declaration,  and  need  not  be  proved.5 
and  in  like  manner,  if  the  plaintiff  has  two  trades,  and 
both  are  alleged  as  inducement,  and  the  language  is 
actionable  as  affecting  the  plaintiff  in  one  of  them,  proof 
of  his  exercising  that  one  trade  will  suffice.6 

1  Harwood  v.  Astley,  1  New  R.  47;  and  post,  %  320. 

2  1  Stark.  Slan.  402.  A  complaint  setting  forth  that  the  plaintiff  was  "  engaged 
in  the  wooden  ware  business,"  sufficiently  describes  his  emplo3-ment  as  that  of  a  buyer 
and  seller  of  wooden  ware.     (Carpenter  v.  Dennis,  3  Sandf.  305.) 

3  Denman,  C.  J.,  Ayre  v.  Craven,  2  Adol.  &  El.  2 ;  4  Nev.  &  M.  220 ;  and  see 
Alexander  v.  Angle,  1  Cromp.  &  J.  143. 

4  Gage  v.  Robinson,  12  Ohio,  250. 

5  Spall  v.  Massey,  2  Stark.  R.  559. 

6  Figgins  v.  Cogswell,  cited  Chalmers  v.  Shackell,  3  C.  <fe  P.  411 ;  3  M.  A  S.  369. 
See  post,  note  2,  p.  535.     But  where  the  plaintiff  alleged  that  he  was  proprietor  and 


§  319-20.]  THE    COMPLAINT.  513 

§  319.  Too  great  minuteness  in  matter  of  induce- 
ment is  to  be  avoided,  because,  in  general,  the  proof  must 
be  co-extensive  with  the  allegation  ;  as  where  the  plaint- 
iff alleged  that  he  was  an  attorney,  that  he  conducted 
a  particular  suit,  and  afterwards  alleged  that  the  defam- 
atory matter  was  concerning  his  conduct  in  that  suit,  it 
was  held  that  he  must  prove  the  existence  of  that  suit.1 
And  in  an  action  for  a  libel  on  a  constable,  respecting 
his  conduct  in  the  apprehension  of  persons  stealing  a 
dead  body,  and  part  of  the  conduct  stated  in  the  first 
count  was  that  of  carrying  the  dead  body  to  Surgeons' 
Hall,  and  the  second  count  spoke  of  "  his  conduct  respect- 
ing the  said  dead  body,"  the  court  held  that  it  was  neces- 
sary in  both  counts  to  prove  the  introductory  allegation 
that  the  body  was  carried  to  Surgeons'  Hall ;  for  the 
words,  "  the  said  body,"  in  the  second  count,  incorporated 
all  the  descriptive  circumstances  introduced  in  the  first ; 
the  plaintiff  need  not  have  burthen ed  himself  with  the 
proof  of  such  a  fact ;  but  the  libel  being  stated  to  be  of  and 
concerning  his  conduct  as  to  the  dead  body,  it  became 
most  important  to  prove  that  part  of  his  conduct.2  But  it 
is  said,3  "The  omission  to  prove  facts  unnecessarily  alleged 
will  not  be  fatal  unless  by  the  form  and  mode  of  plead- 
ing they  have  been  made  descriptive  of  that  which  is 
material." 

§  320.  In  need  not  be  alleged  that  the  plaintiff  was 
legally  qualified  or  licensed  to  exercise  the  calling  in 
which  the  language  affects  him ;  if  he  was  not  so  quali- 
fied or  licensed,  it  is  matter  of  defense  to  come  from  the 
defendant.     In  an  action  for  slander,  the  plaintiff  alleged 


editor  of  a  newspaper,  it  was  held  insufficient  for  him  to  prove  himself  proprietor 
onl}\     (Heriot  v.  Stewart,  4  Esp.  437.) 

1  Parry  v.  Collis,  5  Esp.  339. 

2  Teesdale  v.  Clement,  1  Chit.  603. 
8  1  Stark.  Sland.  407. 


514  PLEADING.  [Cll.  XIII. 

tLat  he  was  in  medicinis  doctor,  and  it  was  moved  in 
arrest  of  judgment  that  he  did  not  show  he  was  licensed, 
but  adjudged  for  the  plaintiff.1  And  so  in  an  action  by 
a  physician  for  words  of  him  in  his  profession,  it  is  suffi- 
cient for  him  to  aver  that  he  had  used  and  exercised  the 
profession  of  a  physician ;  but  where  a  plaintiff  in  such 
a  case  went  further,  and  averred  that  he  was  a  physician, 
and  had  duly  taken  the  degree  of  a  doctor  of  physic,  it 
was  held  that  he  must  prove  his  degree  as  stated.2 

§  321.  In  a  complaint  founded  upon  a  charge  of  fcdse 
swearing  as  a  witness,  such  a  charge  not  being  actionable 
per  se  (§  171),  to  show  a  cause  of  action  there  should  be 
an  inducement  of  the  pendency  of  a  suit  or  judicial  pro- 
ceeding, in  which  the  plaintiff  was  examined  as  a  witness, 
and  a  colloquium  that  the  charge  was  concerning  the 
plaintiff  as  such  witness.3  If  there  were  several  suits  be- 
tween the  same  parties,  tried  on  the  same  day,  it  is  not 
necessary,  it  seems,  to  distinguish  in  which  suit  the  false 
swearing  occurred.4  And  where  the  suit  or  proceeding 
was  before  a  court  or  officer  of  limited  jurisdiction,  it 
must  be  further  shown  that  such  court  or  officer  had  juris- 
diction of  the  suit  or  proceeding;  an  averment  that  the 
justice  then  and  there  had  jurisdiction  of  the  action  was 
held  sufficient  without  setting  forth  the  facts  which  gave 

1  Dr.  Brownlow's  Case,  Mar.  116,  pi.  3  ;  and  ante,  §§  182,  183,  189. 

2  Moises  v.  Thornton,  8  T.  R.  303. 

3  Stone  v.  Clark,  21  Pick.  51 ;  Gale  v.  Hays,  3  Strobh.  452 ;  Sharp  v.  Wilhite,  2 
Humph.  434;  Williams  v.  Spears,  11  Ala.  138 ;  and  semble  it  should  be  alleged  that 
defendant  intended  to  impute  a  charge  of  perjury.  (Wood  v.  Scott,  13  Verm.  42; 
Sanderson  v.  Hubbard,  14  Id.  462.)  It  is  not  necessary  to  state  what  the  witness 
testified.  (Whitaker  v.  Carter,  4  Ired.  461.)  A  complaint  for  slander  set  out  that  in 
a  suit  before  a  justice,  P.  W.  was  a  witness  to  material  matter;  that  defendant,  in  a 
conversation  concerning  said  trial  and  concerning  the  plaintiff,  being  guilty  of  subor- 
nation of  perjury,  published,  <fec,  the  words,  "P.  F.  swore  to  a  lie,  and  you  (plaintiff) 
hired  him."  It  was  objected  to  the  complaint  that  it  did  not  allege  that  the  conversa- 
tion was  of  and  concerning  the  testimony  of  P.  F.  on  the  trial.  Held,  after  verdict, 
the  complaint  was  good.     (Shinier  v.  Brounenburg,  18  Ind.  363.) 

4  Harris  v.  Purdy,  1  Stew.  231. 


§  322.]  THE   COMPLAINT.  515 

the  jurisdiction.1  The  plaintiff  need  not  show  that  the 
justice  was  duly  commissioned.2  A  declaration  which  al- 
leged that  the  words  were  spoken  "  whilst  the  plaintiff 
was  giving  testimony  as  a  witness  under  the  solemnities 
of  an  oath,  before  an  acting  justice  of  the  peace," 3  and  a 
declaration  which  alleged  that  the  plaintiff  was,  at  the 
instance  of  the  defendant,  examined  on  oath  administered 
by  a  justice,  according  to  law,  as  a  witness  for  the  defend- 
ant, were  held  sufficiently  to  allege  jurisdiction.4  "Squire 
H."  was  held  a  sufficient  description  of  P.  H.,  esquire,  a 
justice  of  the  peace.5 

§  322.  It  should  be  alleged  that  the  testimony  was 
material  to  the  point  in  issue,  but  it  is  not  necessary  to 
show  to  what  particular  degree,  the  point  in  respect  to 
which  a  party  is  charged  with  false  swearing,  was  mate- 
rial to  the  issue.  If  it  goes  to  prove  a  material  circum- 
stance or  link  in  the  chain  of  evidence  it  is  sufficient.6 
And  it  has  been  said  that  an  averment  of  the  materiality 


1  Sanford  v.  Gaddis,  13  HI.  329. 

s  Pugh  v.  Neal,  4  Jones'  Law  (N.  Car.),  367.  It  was  held  not  necessary  to  allege 
either  that  the  justice  had  jurisdiction  or  that  the  testimony  was  material.  (Dalryrn- 
ple  v.  Lofton,  2  M'Mullan,  112.)  But  as  to  the  necessity  of  alleging  jurisdiction,  see 
Shellenbarger  v.  Norris,  2  Carter  (Ind ),  285;  Jones  v.  Marrs,  11  Humph.  214;  Chap- 
man v.  Smith,  13  Johns.  78;  Bonner  v.  McPhail,  31  Barb.  106;  Cannon  v.  Phillips, 
2  Sneed  (Tenn.)  185. 

"Where  the  charge  is  that  the  plaintiff  committed  perjury,  that  implies  a  false 
swearing  before  a  competent  tribunal,  and  jurisdiction  need  not  be  alleged.  (Green 
v.  Long,  2  Cai.  91.)  Where  the  charge  is  perjury  committed  in  a  foreign  state,  it 
must  be  averred  that  by  the  laws  of  such  state  perjury  is  an  offense  to  which  is  an- 
nexed an  infamous  punishment.  (Sparrow  v.  Maynard,  8  Jones'  Law  (N.  Car.),  195  ; 
and  see  ante,  note  6,  p.  213.) 

3  Lewis  v.  Black,  27  Miss.  (5  Cush.)  425. 

4  Shellenbarger  v.  Norris,  2  Carter  (Ind.),  285. 

*  Call  v.  Foresman,  5  Watts,  331 ;  and  see  ante,  note  4,  p.  193 ;  "  N.  T.,  esquire,  afore- 
said," held  sufficient  description  of  a  justice  of  the  peace.  (Canterbury  v.  Hill,  4 
Stew.  &  Port.  224.) 

6  nutchins  v.  Blood,  25  Wend.  413  ;  and  see  Witcher  v.  Richmond,  8  Humph. 
473;  Shroyer  v.  Miller,  3  W.  Vir.  158;  Hogan  v.  Wilmarth,  16  Grat.  80;  note  to 
§  171,  ante. 


516  PLEADING.  [Ch.  XHI. 

of  the  evidence  may  be  altogether  omitted;1  at  least  the 
absence  of  such  an  allegation  will  be  cured  by  verdict.2 
It  is  not  necessary  to  allege  that  the  justice  had  authority 
to  administer  the  oath.3  But  it  should  be  alleged  that 
the  plaintiff  was  legally  sworn.4  The  defendant  cannot 
show  as  a  defense  that  the  plaintiff  was  not  a  competent 
witness.5  The  absence  of  allegations  of  jurisdiction  in  the 
justice,  or  materiality  of  the  testimony,  may  be  cured  by 
a  plea  of  justification,6  or  by  a  verdict.7 

§  323.  Properly  the  colloquium  or  allegation  of  a  dis- 
course is  the  allegation  that  the  language  published  was 
concerning  the  plaintiff,  or  concerning  the  plaintiff  and 
his  affairs,  or  concerning  the  plaintiff  and  the  facts  alleged 
as  inducement.  But  the  term  colloquium  is  frequently 
employed  as  synonymous  with  inducement,  or  to  signify 
the  inducement  and  the  colloquium  properly  so  called. 
As  heretofore  stated  (§§  310,  316)  it  must  be  shown  on 
the  face  of  the  complaint  that  the  language  was  published 
concerning  the  plaintiff,  and  the  proper  mode  of  doing 
this  is  by  a  direct  averment  that  the  publication  was  "  of 
and  concerning  the  plaintiff."     This  averment  may,  how- 

1  Wetsel  v.  Lennen,  13  Ind.  535;  Cannon  v.  Phillips,  2  Sneed,  185;  Wolbreiht  v. 
Baumgarten,  26  111.  291;  Harbison  v.  Shook,  41  111.  142. 

2  Niven  v.  Munn,  13  Johns.  48.  In  slander  for  the  charge  of  perjury,  the  materi- 
ality of  the  alleged  false  testimony  is  for  the  court  to  determine,  and  if  left  to  the 
jury  it  is  error.  (Steinman  v.  McWilliams,  6  Barr,  170;  Power  v.  Price,  12  Wend. 
500,  affirmed  16  Wend.  450.)  Or  ground  for  a  new  trial.  (Dalrymple  v.  Lofton,  2 
M'Mullan,  112.) 

s  Sanford  v.  Gaddis,  13  111.  329;  but  see  Jones  v.  Marrs,  11  Humph.  214. 
4  Sanderson  v.  Hubbard,  14  Verm.  462. 

6  Harris  v.  Purdy,  1  Stew.  231.  A  declaration  in  slander,  charging  the  words 
spoken  as  follows:  "He  (meaning  plaintiff)  has  sworn  falsely,"  &c,  "against  me 
(meaning  defendant),  and  he  (meaning  defendant'  could  prove  it,"  was  held  bad  after 
verdict;  by  "he"  in  the  latter  clause,  as  pleaded,  the  defendant  could  not  have  meant 
himself.     (Bowdish  v.  Peckham,  1  Chip.  146.)    But  see  post,  note  to  §  343. 

0  Witcher  v.  Richmond,  8  Humph.  473;  Attebury  v.  Powell,  29  Miss.  (8  Jones) 
429  ;  Sanderson  v.  Hubbard,  14  Verm.  462. 

7  Palmer  v.  Hunter,  8  Mis.  512;  Morgan  v.  Livingston,  2  Pdch.  573;  Xrven  v. 
Munn,  13  Johns.  48;  but  see  Wood  v.  Scott,  13  Verm.  42. 


§  323.]  THE    COMPLAINT.  517 

ever,  be  supplied  by  any  equivalent  allegation,  and  may 
be  altogether  dispensed  with  where  it  appears  otherwise 
with  sufficient  certainty  on  the  face  of  the  complaint  that 
the  publication  was  in  fact  concerning  the  plaintiff.1 
And  although,  in  actions  for  slander  and  libel,  induce- 
ment may  be  necessary  to  explain  the  matter  alleged  to 
be  libellous,  it  is  enough  to  state  in  the  declaration  that 
the  publication  was  "of  and  concerning"  the  plaintiff, 
without  also  stating  that  it  was  "  of  and  concerning  "  such 
matter,2  or  of  and  concerning  the  plaintiff  in  the  occupa- 


1  It  is  sufficient  to  aver  substantially  that  the  words  were  spoken  of  plaintiff;  an 
express  averment  of  the  fact  is  not  necessary.  (Brown  v.  Lamberton,  2  Binn.  34 ; 
Brasben  v.  Sbepberd,  Ky.  Dec.  294 ;  Nestle  v.  Van  Slyke,  2  Hill,  282 ;  but  see  Titus 
v.  Follett,  2  Hill,  318 ;  Tyler  v.  Tillottson,  2  Hill,  508;  Cave  v.  Shelor,  2  Munf.  193  ; 
Harper  v.  Delp,  3  Ind.  225;  Eex  v.  Marsden,  4  M.  &  S.  164;  Baldwin  v.  Hildretb,  14 
Gray  (Mass.)  221.)  On  demurrer,  wbere  the  words  did  not  name  the  plaintiff,  the 
omission  of  a  colloquium  of  and  concerning  the  plaintiff  was  held  fatal,  and  not  aided 
by  the  innuendoes.  (Milligan  v.  Thorn,  6  Wend.  412;  and  see  Church  v.  Bridgman, 
6  Miss.  190.)  Nor  by  the  verdict,  the  language  being  in  the  third  person.  (Sayre 
v.  Jewett,  12  Wend.  135.)  If  there  be  a  colloquium  sufficient  to  point  the  application 
of  the  words  to  the  plaintiff,  if  spoken  maliciously,  he  must  have  judgment.  (Lind- 
sey  v.  Smith,  7  Johns.  359.)  Where  actionable  words  are  spoken  to  a  plaintiff,  it  is 
sufficient  to  allege  a  discourse  with  him,  without  an  averment  that  the  words  were 
concerning  the  plaintiff;  but  where  the  words  are  in  the  third  person,  as,  "  He  is  a 
thief,"  there,  although  a  discourse  of  the  plaintiff  is  alleged,  it  must  also  be  alleged 
that  the  words  were  concerning  the  plaintiff.  And  it  is  not  sufficient  in  such  a  case 
to  connect  the  words  with  the  plaintiff  by  an  innuendo.  (1  Stark.  Sland.  384.)  But 
where  a  discourse  of  the  plaintiff  is  laid,  and  there  is  an  innuendo  of  the  plaintiff,  it 
seems  that  the  want  of  a  direct  averment  that  the  words  were  concerning  the  plain- 
tiff must  be  pointed  out  by  special  demurrer  [motion  to  make  certain] ;  but  if  no  dis- 
course concerning  the  plaintiff  is  alleged,  then  the  want  of  an  allegation  that  the 
words  concerned  him  would  be  a  defect  in  substance.  {Id. ;  Skutt  v.  Hawkins,  1 
Rolle  R.  244.)  If  a  plaintiff  has  omitted,  in  his  declaration,  to  state  that  the  libel  was 
spoken  of  himself,  he  may  supply  the  same  by  parol  evidence.  (Newbraugh  v.  Curry, 
Wright,  511.)  Where  A.  says  of  B.  &  C,  "you  have  committed  such  an  offense," 
though  B.  &  C  may  have  separate  actions,  the  words  must  be  alleged  to  have  been 
spoken  of  both.  (Cro.  Car.  512.)  Where  the  declaration  states  a  colloquium  with 
G.,  of  and  concerning  the  children  of  G.,  and  of  and  concerning  C,  one  of  the  chil- 
dren of  G.,  and  the  plaintiff  in  the  suit,  in  particular,  and  that  the  defendant  said, 
"  Your  children  are  thieves,  and  I  can  prove  it,"  the  colloquium  conclusively  points 
the  words,  and  designates  the  plaintiff  as  one  of  the  children  intended.  And  a  collo- 
quium is  sufficient  to  give  application  to  words  still  more  indefinite.  (Gidney  v. 
Blake,  11  Johns.  54;  but  see  what  is  said  1  Stark.  Sland.  385;  see  also  ante,  g  129.) 

■  O'Brien  v.  Clement,  4  D.  &.  L.  563 ;  Gutsole  v .  Mathers,  1  M.  &  W.  495 ;  Shinier 
v.  Brounenburg,  18  Ind.  363. 


518  PLEADING.  [Cll.  XILT. 

tion  alleged  in  the  inducement.1  Where  the  declaration 
alleged  that  the  defendant  published  a  libel  of  and  con- 
cerning the  plaintiff,  containing,  &c,  the  false  libellous 
matters  following  (without  saying  of  and  concerning  the 
plaintiff);  held,  in  error,  that  for  want  of  an  averment 
that  the  particular  matter  was  of  and  concerning  the 
plaintiff,  and  there  being  no  innuendo  that  such  matter 
related  to  him,  the  declaration  was  bad,  and  a  venire  de 
novo  was  awarded.2  A  declaration  which  alleged  that 
the  plaintiffs  were  traders  under  the  firm  of  T.  &  Co.,  and 
averring  that,  in  a  discourse  of  and  concerning  them,  their 
circumstances  and  business,  the  defendant  said,  "T.  &  Co. 
are  down,"  &c,  without  repeating  that  this  was  said  of 
and  concerning  the  plaintiffs,  was  held  bad  on  special 
demurrer,  although  good  in  substance.'3 

§  324.  A  publication  by  the  defendant  must  be 
alleged.  The  publication  need  not  be  set  forth  in  any 
technical  form  of  words.4  But  it  must  be  alleged  posi- 
tively, and  not  by  way  of  recital ; 6  and,  therefore,  a 
declaration  which  commenced,  "  For  that  whereas "  the 
defendant  intending,  &c,  spoke,  <fcc,  was  held  bad  on 
special  demurrer.6  In  slander  for  English  words,  it  should 
be  alleged  that  the  defendant  spoke  the  words  in  the 
presence   and  hearing   of  divers  persons,7  or   of  certain 

1  Wakley  v.  Healey,  18  Law  Jour.  Rep.  241,  C.  P. ;  contra,  see  Barnes  v.  Trundy, 
31  Maine  (1  Rid.),  321. 

a  Clement  v.  Fisher,  7  B.  &  Cr.  459;  1  M.  &  Ry.  281. 

3  Titus  v.  Follett,  2  Hill,  318;  and  see  Taylor  v.  The  State,  4  Geo.  14. 

4  Baldwin  v.  Elphinstone,  2  W.  Black.  1037,  ante,  n.  2,  p.  143.  It  was  held  suffi- 
cient to  allege  that  the  defendant  was  the  proprietor  of  the  newspaper  in  which  the 
alleged  libel  was  published.     (Hunt  v.  Bennett,  19  KY,  173.) 

6  Donage  v.  Rankin,  4  Munf.  261. 

6  Brown  v.  Thurlow,  4  D.  <fe  L.  301 ;  16  M.  &  W.  36 ;  Coffin  v.  Coffin,  2  Mass.  358 ; 
Houghton  v.  Davenport,  23  Pick.  235. 

7  To  allege  a  speaking  merely,  is  not  sufficient.  (Stj-le,  70;  1  Stark.  Sland.  360.) 
In  Indiana,  by  statute  it  is  sufficient  merely  to  allege  the  speaking.  (Girard  v.  Risk, 
11  Ind.  156.)  And  so  in  Missouri  (Atwinger  v.  Fellner,  46  Misso.  276 ;  Steiber  v. 
Wensel,  19  Mid.  513),  and  held  that  an  averment  that  the  defendant  "  did,  in  certain 


§  325.]  THE    COMPLAINT.  519 

persons,  naming  them,1  or  of  certain  persons  named  and 
divers  others,  not  naming  the  others.2  Published  ex  vi 
termini,  imports  a  speaking  in  the  presence  and  hearing 
of  a  third  party ; 3  and,  therefore,  to  allege  that  the 
defendant  published  the  words  is  sufficient,  without  aver- 
ring specially  the  presence  of  others.4  And  an  allegation 
that  the  words  were  spoken  would  be  sufficient,  without 
stating  the  presence  of  any  third  person,  if  accompanied 
by  any  averment  which  necessarily  implies  a  publication 
to  a  third  person — as  that  the  defendants  palim  et  piiblice 
promidgant  de  querente?  In  the  case  of  English  words, 
it  is  not  necessary  to  allege  that  the  persons  present 
either  heard  or  understood  what  was  said ;  for  until  the 
contrary  is  made  to  appear,  it  will  be  intended  that  those 
present  both  heard  and  understood  the  words ;  but  in  the 
case  of  a  publication  of  foreign  words,  it  must  be  alleged 
that  the  persons  present  understood  them.6 

§  325.  Where  the  publication  was  made  in  writing, 
published  is  the  proper  and  technical  term  by  which  to 
allege  the  publication,  and  this  without  reference  to  the 
precise  degree  in  which  the  defendant  was  instrumental 
to  the  publication.7     But  any  equivalent  allegation  will 

conversations,  utter,  publish,  and  declare,"  sufficiently   implies  that  the  words  were 
spoken  in  the  presence  of  other  persons.     (Hurd  v.  Moore,  2  Oregon,  85.) 

1  Burbank  v.  Horn,  39  Maine  (4  Heath),  233 ;  ante,  n.  4,  p.  143. 

a  Bradshaw  v.  Perdue,  12  Geo.  510  ;  Ware  v.  Cartledge,  24  Ala.  622. 

3  Duel  v.  Agan,  1  Code  Rep.  134  ;  ante,  n.  4,  p.  143. 

4  Barton  v.  Barton,  3  Iowa,  316. 

6  Taylor  v.  How,  Cro.  Eliz.  861.  Prior  to  the  statute  2d  Geo.  II,  ch.  14,  pleadings 
in  the  courts  of  England  were  in  Latin,  which  will  explain  why  the  quotations  from 
the  pleadings  in  the  early  decisions  are  in  Latin. 

9  Warmuth  v.  Cramer,  3  Wend.  394  ;  1  Stark.  Slan.  360  ;  Cro.  Eliz.  396, 480,  865 ; 
Cro.  Jac.  39;  Cro.  Car.  199;  Noy,  57;  Golds.  119;  Zerg  v.  Ort,  3  Chandler,  26;  and 
see  ante,  notes  p.  139.  After  verdict,  a  declaration  which  alleges  words  spoken  in  a  foi- 
eign  language,  without  alleging  that  the  words  were  understood  by  the  hearers,  was 
sustained  (Kiene  v.  Ruff,  1  Clarke  (Iowa),  482);  and  in  Pennsylvania,  held  not  neces- 
sary to  allege  that  foreign  words  were  understood  (Palmer  v.  Harris,  60  Penns.  156). 

7  Lamb's  Case,  9  Rep.  59 ;  1  Stark.  Sland.  359. 


520  PLEADING.  [Cll.  XIII. 

suffice.  Where  it  was  alleged  that  the  defendant  printed 
and  caused  to  be  printed  in  the  St.  James'  Chronicle,  that 
was  held  sufficient ; 1  and  so  was  the  allegation  that  the 
defendant  "  did  publish  and  cause  and  procure  to  be  pub- 
lished," a  certain  libel  addressed  to  the  plaintiff,2  but 
where  the  allegation  was  that  the  defendant  scripsit  fecit, 
et  publicavit  sen  scribi  fecit  et  publicari  causavit,  it  was 
held  to  be  insufficient,  and  judgment  was  arrested  on 
account  of  the  uncertainty  of  the  disjunctive  charge.3  To 
allege  that  the  defendant  is  proprietor  of  a  certain  news- 
paper named,  and  that  the  libel  was  published  in  such 
paper,  was  held  a  sufficient  averment  of  a  publication  by 
the  defendant.4  But  to  allege  that  defendant  sent  a 
letter  to  plaintiff  which  was  received  and  read  by  him, 
does  not  show  a  sufficient  publication.5  If  a  defamatory 
writing  is  shown  to  have  been  put  in  a  situation  in  which 
it  might  have  been  read,  it  is  unnecessary  to  allege  that 
it  was  in  fact  seen  or  read.6 

§  326.  The  place  of  publication  may  be  alleged  with 
a  videlicet}  It  is  not  material,  and  need  not  be  proved  as 
laid.8 

§  327.  The  time  of  speaking  the  words  is  not 
material.9  In  one  case,  it  was  held  that  the  words 
might  be  laid  with  a  continuando™  but  this  was  denied 

1  Baldwin  v.  Elphinstone,  2  W.  Black.  1037. 

a  Waisted  v.  Holman,  2  Hall,  172.  But  to  allege  that  defendant  composed, 
wrote,  and  delivered  a  certain  libel  addressed  to  the  plaintiff,  was  held  insufficient. 
{Id.) 

3  Rex  v.  Brereton,  8  Mod.  328. 

4  Hunt  v.  Bennett,  4  E.  D.  Smith,  647,  affirmed  19  S.Y.  193. 
6  Lyle  v.  Clason,  1  Cai.  5S1. 

6  Giles  v.  The  State,  6  Geo.  276 ;  ante,  n.  2,  p.  142. 

7  Burbank  v.  Horn,  39  Maine  (4  Heath),  233. 

"  Jeffries  v.  Duncombe,  11  East,  226;  ante,  §  110. 

9  Potter  v.  Thompson,  22  Barb.  87;  Hosley  v.  Brooks,  2D  III  115;  but  9ee  ante 
§109. 

10  Burbank  v.  Horn,  39  1'aine  (  4  Heath),  233. 


§  328.]  THE   COMPLAINT.  521 

on  the  ground  that  words  spoken  at  one  time  constitute 
one  cause  of  action,  and  words  spoken  at  another  time 
constitute  another  cause  of  action.1  The  continuando, 
however,  was  held  to  be  surplusage,  and  not  ground  for 
special  demurrer.2  An  allegation,  "and  further,  that 
defendant,  on  divers  days  and  times,  between  that  day 
and  the  commencement  of  this  action,  spoke  the  same 
words,"  was  struck  out  as  redundant.3 

§  328.  It  should  appear  on  the  face  of  the  complaint, 
by  some  appropriate  averment,  that  the  publication  was 
made  without  legal  excuse.  Ex  rnalitia,  in  its  legal  sense, 
imports  a  publication  that  is  false,  and  made  without  legal 
excuse ; 4  an  averment  that  the  publication  was  made  with 
malice  or  maliciously  has  ever  been  and  still  is  the  cus- 
tomary averment ;  but  any  form  of  words  from  which  mal- 
ice (absence  of  excuse)  can  be  inferred,  as  that  the  pub- 
lication was  made  falsely  or  wrongfully,  will  suffice.5 
Neither  the  tercn  malice,6  nor  falsely,  nor  wrongfully,  is 
essential.7  at  least  after  verdict.8  A  declaration  which 
charged  the  publication  to  be  "  malicious,  injurious,  and 
and  unlawful,"  was  held  sufficient.9  Where  it  appeared 
on  the  face  of  the  declaration  that  the  defamatory  matter 
was  published  in  an  affidavit  in  a  proceeding  in  an  action, 
and  was  pertinent  to  the  matter  in  hand,  held  that  the 
declaration  was  demurrable,  because,  notwithstanding  the 

1  Swinney  v.  Nave,  22  Ind.  178  ;  ante,  §  113. 
1  Cummins  v.  Butler,  3  Blackf.  190. 

3  Gray  v.  Nellis,  6  How.  Pra.  Rep.  290. 

4  Johnson  v.  Sutton,  1  T.  It.  439 ;  Cro.  Car.  271 ;    Rowe  v.  Roach,  1  M.  &  S.  304; 
ante,  %%  71,  73. 

5  Jloor,  459;   Owen,  451 ;  Noy,  35 ;  ante,  note  3,  p.  122. 

6  Opdyket».Weed,18  Abb.  Pra.  Rep.  223;  Viele  v.  Gray,  \0ld.  6;  ante, note  1,  p.  131. 

7  Style,  392.     An  allegation  that  the  publication  was  a  libel,  held  equivalent  to 
an  allegation  that  it  was  false  and  malicious.     (Hunt  v.  Bennett,  19  N.  Y.  176.) 

8  2  Saund.  242  ;  White  v.  Nichols,  3  How.  U.  S.  Rep.  206,  284;  Taylor  v.  Kneeland, 
1  Doug.  67. 

9  Rowe  v.  Roach,  1  Mau.  <fe  Sel.  304. 

34 


522  PLEADING.  [Ch.  XEI. 

allegation  that  the  publication  was  false  and  malicious,  it 
appeared  on  the  face  of  the  declaration  that  the  publica- 
tion was  a  privileged  one.1 

§  329.  The  complaint  should  set  out,  and  purport  to 
set  out,  the  very  words  published.2  The  proper  term  by 
which  to  indicate  that  the  very  words  are  set  forth  is 
tenor?  "  Tenor  and  effect "  is  now  held  to  be  sufficient, 
but  there  is  a  decision  to  the  contrary.4  It  is  not  sufficient 
to  allege  that  words  were  published  to  the  effect  folio  w- 


1  Garr  v.  Selden,  4  K  Y.  91. 

2  Finnerty  v.  Barker,  7  N.  Y.  Legal  Observer,  317 ;  Sullivan  v.  White,  6  Irish  Law 
Rep.  40;  Whitaker  v.  Freeman,  1  Dev.  271 ;  Lee  v.  Kane,  6  Gray  (Mass.),  495  ;  Taylor 
v.  Moran,  4  Met.  (Ky),  127;  Commonwealth  v.  Wright,  1  Cush.  46.  In  Gutsole  v. 
Mathers,  1  M.  &  W.  495,  the  precise  words  were  not  set  out,  but  merely  the  effect  of 
them,  the  declaration  alleging  that  the  defendant  wrongfully,  <fcc,  represented  in  the 
presence  and  hearing  of  divers  persons  (naming  them)  that  said  tulips  were  stolen 
property.  On  motion  in  arrest  of  judgment,  the  declaration  was  held  bad  for  not 
setting  out  the  words  verbatim.  In  Pennsylvania,  it  has  been  held  not  necessarv  to 
set  out  the  identical  words  complained  against,  and  that  to  set  forth  their  purport  is 
sufficient.  (Lukehart  v.  Byerly,  53  Penns.  418.)  See  ante,  note  3,  p.  277.  A  new 
trial  was  granted  because  the  words  published  were  not  set  forth  in  the  complaint 
literally.  (Walsh  v.  The  State,  2  McCord,  248.)  Where  the  substance  only  of  the 
defamatory  matter  was  charged  in  the  declaration  for  libel,  the  court,  on  the  trial 
allowed  the  plaintiff  to  amend  by  setting  out  verbatim  the  letter  containing  the  matter 
complained  against.  (Saunders  v.  Bates,  1  Hurl.  &  N.  402.)  Certain  States,  provide 
by  statute  what  words  shall  be  actionable.  (§  153.)  It  is  held  that  acts  declaring 
what  words  are  actionable  are  public  laws,  of  which  courts  are  bound  to  take  notice 
and  the  complaint  or  declaration  need  not  recite  or  refer  to  the  statute  (Sanford  v. 
Gaddis,  13  111.  329 ;  Elam  v.  Badger,  23  111.  498),  except  by  alleging  that  the  words  were 
published  against  the  form  of  the  statute  in  such  case  provided  (Terry  v.  Bright,  4 
Md.  430);  but  the  absence  of  this  allegation  will  be  cured  by  verdict.  (Wilcox  v. 
Webb,  1  Blackf.  258.)  As  to  declaring  upon  the  statutes  of  Virginia  and  Georgia, 
see  Moseley  v.  Moss,  6  Gratt.  534;  Holcombe  v.  Roberts,  19  Geo.  588;  Hanks  v.  Pal- 
ton,  18  Geo.  52. 

3  Commonwealth  v.  Wright,  1  Cush.  46 ;  Wright  v.  Clements,  3  B.  &  Aid.  503. 
To  allege  "  a  certain  receipt  for  money,  as  follows,  that  is  to  say,"  was  held  equiva- 
lent to  an  allegation  "  according  to  the  tenor  following,  or  in  the  words  and  figures 
following,  that  is  to  say."  (Rex  v.  Powell,  1  Leach  C.  C  77,  4th  ed. ;  2  East  P.  C. 
976 ;  2  Wm.  Black.  R.  787.)  In  a  declaration  for  slander  of  plaintiff  in  his  trade,  a 
count  alleging  that  the  defendant,  in  a  certain  discourse  in  the  presence  and  hearing 
of  divers  subjects,  falsely  and  maliciously  charged  the  plaintiff  of  being  in  insolvent 
circumstances,  and  stating  special  damage,  but  without  setting  out  the  words,  was 
held  ill.    (Cook  v.  Cox,  3  M.  &  S.  110.) 

4  Newton  v.  Stubbs,  3  Mod.  71 ;  2  Show.  435. 


§  329.]  THE    COMPLAINT.  523 

ing,1  or  in  substance  as  follows,2  or  purporting,8  or  that 
the  words  were  in  substance  as  follows,  or  according  to 
the  purport  and  effect  following,  or  in  manner  and  form  fol- 
lowing,4 or  that  the  words  were  of  a  certain  tenor,  import 
and  effect.5  Nor  are  quotation  marks  sufficient  to  indicate 
that  the  exact  words  are  set  forth.6  Where  the  defamation 
consists  in  the  adoption  of  words  spoken  "by  another,  the 
declaration  must  set  forth  the  words  with  the  same  par- 
ticularity as  though  the  action  were  against  that  other.7 

1  Ford  v.  Bennett,  1  Ld.  Raym.  415;  Rex  v.  Bear,  2  Salk.  41V. 

a  "Wright  v.  Clements,  3  B.  &  Aid.  503.  Where  a  declaration  for  a  libel  sets  out  a 
publication  which  refers  to  a  previous  publication,  but,  unless  by  reference  to  the 
language  of  the  previous  publication,  contains  no  libel,  such  previous  publication 
must  be  considered  as  incorporated  in  the  ptiblication  complained  of,  and  must  appear 
in  the  declaration  to  be  set  out  verbatim,  and  not  merely  in  substance.  Therefore 
judgment  was  arrested  as  to  the  second  count  of  a  declaration,  which,  after  reciting 
that  defendant  published  a  statement  "in  substance  as  follows,"  setting  out  the  publi- 
cation charged  in  the  first  count,  charged  that  defendant  afterwards  published  of  and 
concerning  plaintiff,  and  of  and  concerning  the  first  publication,  a  statement  that  the 
copper  tank  was  fitted  up  in  a  schooner  belonging  to  plaintiff.  (Solomon  v.  Lawson, 
8  Q.  B.  823.) 

3  Wood  v.  Brown,  6  Taunt.  169;  and  see  Cook  v.  Cox,  1  M.  &  S.  110,  alleging  the 
speaking  of  certain  words,  or  words  of  the  same  import,  was  held  good  after  verdict. 
(Bell  v.  Bugg,  4  Mumf.  260.) 

4  Bagley  v.  Johnson,  4  Rich.  22 ;  Watson  v.  Music,  2  Mis.  29 ;  Zeig  v.  Ort,  3  Chand. 
(Wis.)  26;  Bassett  v.  Spofford,  11  N.  Hamp.  127;  Churchill  v.  Kimball,  3  Ham.  409; 
Rex  v.  May,  1  Doug.  193.  A  count  in  slander  stating  that  defendant  charged  plaintiff 
with  the  crime  of  forgery;  held  bad  (Yunclt  v.  Yundt,  12  S.  <fc  R.  427);  and  so  of 
perjury  (Ward  v.  Clark,  2  Johns.  10);  and  where  a  count  alleged  that  defendant 
charged  plaintiff  with  the  crime  of  theft,  without  setting  out  the  exact  words,  it  was 
held  bad  after  verdict.  (Parsons  v.  Bellows,  6  N.  Hamp.  289.)  In  Massachusetts, 
even  before  the  statute  of  1852,  it  was  held  sufficient  to  allege  that  defendant  accused 
plaintiff  of  a  certain  crime,  as  stealing,  without  setting  out  the  words  spoken  (Pond 
v.  Hartwell,  17  Pick.  269;  Allen  v.  Perkins,  Id.  369;  Gardner  v.  Dyer,  5  Gray,  22; 
Nye  v.  Otis,  8  Mass.  122 ;  Whiting  v.  Smith,  13  Pick.  364;  Gay  v.  Horner,  13  Pick. 
535;  and  see  Kennedy  v.  Lowry,  1  Binn.  393;  Grubs  v.  Kcyser,  2  McCord,  305);  but 
in  that  State  the  defendant  is  entitled  to  a  bill  of  particulars  setting  forth  the  exact 
words.  (See  Payson  v.  Macomber,  3  Allen,  71.1  A  count  in  Blander  alleging  that 
defendant  wrongfully  and  without  reasonable  cause  "imposed  the  crime  of  felony" 
upon  the  plaintiff  was,  after  verdict,  held  good.  (Davis  v.  Noakee,  1  Stark.  377  ;  Hill 
v.  Miles,  9  N.  Hamp.  9.)  In  actions  for  malicious  prosecution,  it  is  sufficient  to  declare 
quod  crimen  felonice  hn/io-oiit,  without  stating  the  word-.  (Pippel  v.  Beam,  5  B.  <fe 
Aid.  634;  Blizard,  v.  Kelly,  2  B.  &  C  283;  Davis  v.  Noake,  6  M.  A  S.  83.) 

6  Forsyth  v.  Edmiston,  5  Duer,  658. 

6  Commonwealth  v.  Wright,  1  Cash.  46. 

7  Blessing  v.  Davis,  24  Wend.  100. 


524  PLEADING.  [Cll.  XHL 

§  330.  Where  the  words  were  published  in  a  foreign 
language,  the  foreign  words  must  be  set  forth,1  together 
with  a  translation  into  English.  To  set  forth  the  foreign 
words  alone,  or  the  translation  alone,  would  not  be  sum. 
cient.2  The  omission  to  set  forth  a  translation  may  be 
rectified  by  an  amendment.3  On  a  general  denial,  the 
plaintiff  must  prove  the  correctness  of  the  translation, 
but  its  correctness  is  admitted  by  a  demurrer.4  To  allege 
a  publication  of  English  words,  and  prove  a  publication 
of  words  in  another  tongue  is  a  variance,5  and  cause  for  a 
nonsuit.6 

§  331.  The  object,  or  one  of  the  objects,  of  obliging  a 
plaintiff  to  set  forth  in  his  complaint  the  very  words  com- 
plained against,  is,  that  the  defendant  may,  if  he  desires 
it,  by  demurring,  have  the  opinion  of  the  court  upon  the 
actionable  quality  of  the  words.7 

§  332.  One  exception  to  the  rule  now  under  consider- 
ation is  said  to  be,  when  the  words  published  are  so 
obscene  as  to  render  it  improper  that  they  should  appear 
upon  the  record,  and  in  such  case  the  statement  of  the 
words  may  be  omitted  altogether,  and  a  description 
substituted ;  but  the  reason  for  not  setting  forth  the  exact 
words  must  appear  by  proper  averments  on  the  face  of 
the  complaint.8 

1  Zenobia  v.  Axtell,  6  T.  R.  162. 

2  Wormouth  v.  Cramer,  3  Wend.  394 ;  Setterman  v.  Ritz,  3  Sandf.  734 ;  Zeig  r. 
Ort,  3  Chand.  26 ;  Kersehbaugher  v.  Slusser,  ]  2  Ind.  453 ;  Hickley  v.  Grosjean,  6 
Blackf.  351 ;  Rehauser  v.  Scbwerger,  3  Watts,  28. 

3  Zenobia  v.  Axtell,  6  T.  R.  162;  Rebauser  v.  Scbwerger,  3  Watts,  28  ;  Jenkins  v. 
Phillips,  9  C.  &  P.  7ti6.  An  amendment  was  allowed  by  inserting  the  foreign  words. 
(Deboux  v.  Lebind,  1  Code  Rep.  IT.  S.  235.)     See  Variance. 

4  Hickley  v.  Grosjean,  6  Blackf.  351. 

5  Keenholts  v.  Becker,  3  Denio,  346 ;  Kerschbaugber  v.  Slusser,  12  Ind.  453. 

6  Zenobia  v.  Axtell,  6  T.  R.  162;  Zeig  v.  Ort,  3  Chand.  26. 

7  "Wood  v.  Brown,  6  Taunt.  169. 

"  Com'wealtb  v.  Tarbox,  1  Cusb.  46;   Cem'wealth  v.  Holmes,  11  Mass.  336.     In- 


§§  333-4.]  THE   COMPLAINT.  525 

§  333.  The  omission  to  set  forth  in  the  declaration 
the  very  words  published  is  a  variance,  and  in  the  practice 
at  common  law  the  omission  was  not  cured  by  verdict, 
and  might  be  taken  advantage  of  by  motion  in  arrest  of 
judgment.1  The  degree  of  certainty  with  which  the 
defamation  must  be  set  forth  depends  upon  the  subject- 
matter.  Where  the  defamation  consists  mainly  in  postures 
and  movements,  the  use  of  language  somewhat  general  is 
unavoidable;  and  where  a  declaration  alleged,  that  the 
defendant  published  of  and  concerning  a  certain  court- 
martial,  and  of  and  concerning  the  plaintiff  as  a  member 
thereof,  a  defamatory  libel  and  caricature,  consisting  of  a 
picture  representing  and  pointing  out  the  court-martial, 
and  the  plaintiff  as  a  member  thereof,  by  their  position 
and  certain  grotesque  resemblances,  <fcc,  it  was  held,  after 
verdict,  to  be  averred  with  sufficient  certainty  that  the 
plaintiff  was  specifically  and  individually  libelled.2 

§  334.  The  rule  now  under  consideration  does  not 
render  it  necessary  to  set  forth  the  whole  of  the  matter 
published;  it  is  sufficient  to  set  forth  the  particular 
passages  complained  of,  provided  they  are  divisible  from 
and  their  meaning  is  not  affected  by  the  other  and  omitted 
passages.3     It  is  sufficient  to  set  out  the  words  which  are 

decent  words  tending  only  to  aggravate  the  damages  need  not  be  repeated  in  the 
declaration.     (Stevens  v.  Handley,  Wright  (Ohio.),  121.) 

1  Gutsole  v.  Mathers,  1  M.  &  W.  495 ;  Wright  v.  Clements,  3  B.  &  A.  503.  And 
see  Variance. 

8  Ellis  v.  Kimball,  16  Pick.  132.  Judgment  was  arrested  in  an  action  for  slander 
respecting  a  bribe,  because  the  charge  did  not  specify  to  whom  the  money  was 
given.  (Purdy  v.  Stacey,  5  Burr.  2698.)  A  declaration  in  slander  for  charging  the 
plaintiff  with  larceny,  held  good  after  verdict,  although  it  did  not  set  forth  the  name 
of  the  owner  of  the  property  alleged  to  have  been  stolen  by  plaintiff.  (Thompson  v. 
Barkley,  27  Penn.  St.  R.  263.)  It  is  not  necessury  to  set  forth  the  imputation  of  an 
offense  with  the  same  particularity  as  in  an  indictment.  (Id. ;  Niven  v.  Munn,  13 
Johns.  48.) 

3  Culver  v.  Van  Anden,  4  Abb.  Tra.  Pep.  874;  Rex  v.  Brereton,  8  Mod.  329; 
Sidman  v.  Mayo,  1  Roile  R.  429.  A  document  referred  to  in  an  alleged  libel  need 
not  be  set  out  if  it  does  not  affect  the  meaning  of  the  language  complained  against 
(Walsh  v.  Henderson,  4  Ir.  L.  R.  :;i.) 


526  PLEADIXG.  [Cll.  XIII. 

material,  and  additional  words,  which  do  not  diminish 
nor  alter  the  sense  of  the  words  truly  alleged ;  may  be 
omitted.1  But  enough  must  be  set  forth  to  show  the 
sense  and  connection  in  which  words  set  forth  were  used ; 
otherwise  there  will  be  a  variance,  even  if  the  precise 
words  laid  are  proved  to  have  been  spoken.2  Where 
several  passages  are  extracted  from  the  same  publication, 
care  should  be  taken  to  show  that  such  is  the  case,  as  by 
prefacing  the  first  extract,  with  the  allegation,  in  a  certain 
part  of  which  said  libel  there  was  and  is  contained,  <fec, 
and  by  prefacing  the  subsequent  extracts  with  the  allega- 
tion, and  in  a  certain  other  part  of  which  said  libel  there 
was  and  is  contained,  &c.3  But  unless  the  insertion  of 
the  whole  matter  published  would  be  oppressive  and 
embarrassing,  there  is  no  objection  to  setting  forth  the 
whole  of  the  matter  published.  Thus,  where  in  slander 
the  words  set  out  were,  "  Your  wife  is  a  damned  Irish 
woman,  and  lias  got  the  palsy,  and  your  son  is  insane, 
and  you  are  a  damned  thief,"  the  court,  on  motion,  refused 
to  strike  out  as  redundant  the  words  in  italic}  In  an  un- 
reported case  in  New  York,  in  which  the  plaintiff  set  out, 
without  innuendoes,  the  whole  of  the  publication  (nearly 
an  entire  column  in  a  newspaper),  on  defendant's  motion 
an  order  was  made  requiring  the  plaintiff  tospecify  the 
particular  passages  on  which  he  relied  as  defamatory. 

§  335.  It  is  an  elementary  rule  of  pleading  that  what- 
ever is  alleged  must  be  alleged  with  certainty ;  and  one 
of  the  means  of  ensuring  certainty  in  a  complaint  for 
slander  or  libel  is  an  vnnuendo.5  Among  the  attempts  to 
define  an  innuendo  and  explain  its  function  are  the  follow- 

1  Spencer  v.  Mcilasters,   16  111.  405;    Weir  v.  Hoss,  6  Ala.   881;  Buckingham  v. 
Murray,  2  Car.  &  P.  46. 

8  Edgerly  v.  Swain,  32  X.  Eamp.  478. 

sTabertz>.  Tipper,  1  Camp.  350;  Cooke  v.  Hughes,  1  Ry.  <fc  M.  112. 

*  Deyo  v.  Brundage,  13  How.  Pra.  Rep.  221. 

6  Rodeburgh  v.  Holliagsworth,  6  Ind.  339.     Where  the  language  directly  and  in 


§  335.]  TIIE    COMPLAINT.  527 

ins; :  Tlie  office  of  an  innuendo  is  to  aver  the  meaning  of 
the  language  published.1  An  innuendo  means  nothing 
more  than  the  words  "id  est"  "scilicet  or  "meaning" 
or  "  aforesaid!''  as  explanatory  of  a  matter  sufficiently 
expressed  before.2  It  is  in  the  nature  of  a  prcedict.  It 
may  serve  for  an  explanation,  to  point  a  meaning  where 
there  is  precedent  matter,  expressed  or  necessarily  under- 
stood or  known,  but  never  to  establish  a  new  charge. 
It  may  apply  what  is  already  expressed,  but  cannot  add 
to  nor  enlarge  nor  change  the  sense  of  the  previous 
words.8  If  the  words  before  the  innuendo  do  not  sound 
in  slander,  no  meaning  produced  by  the  innuendo  will 
make  the  action  maintainable,  for  it  is  not  the  nature  of 
an  innuendo  to  beget  an  action.4  An  innuendo  helps 
nothing  unless  the  words  precedent  have  a  violent  pre- 


terms free  from  ambiguity  is  actionable,  no  innuendo  is  necessary.     (Worth  v.  Butler, 
7  Blackf.  251 ;  Roella  v.  Follow,  id.  377.) 

I  Watson  v.  Nicholas,  6  Humph.  174.  The  office  of  the  innuendo  is  to  explain 
doubtful  words  or  phrases,  and  annex  to  them  their  proper  meaning.  It  cannot 
extend  their  sense  beyond  their  visual  and  natural  import,  unless  something  is  put 
upon  the  record  by  way  of  introductory  matter  with  which  they  can  be  connected. 
In  such  case,  words  which  are  equivocal  or  ambiguous,  or  fall  short,  in  their  natural 
sense,  of  importing  any  libellous  charge,  may  have  fixed  to  them  a  meaning,  certain 
and  defamatory,  extending  beyond  their  ordinal'}'  import.  (Beardley  «/.  Tappan,  1 
Blatch.  C.  C.  588.)  And  to  the  like  effect,  see  Dorsey  v.  Whipps,  8  Gill,  457  ;  Nichols 
v.  Packard,  16  Verm.  83;  Patterson  v.  Edwards,  2  Gilman,  720;  Andrews  v.  Wood- 
mansee,  15  Wend.  232;  Taylor  v.  Kneeland,  1  Douglass,  67;  Gosling  v.  Morgan,  32 
Penn.  St  R.  273  ;  The  State  v.  Henderson,  1  Richardson,  179  ;  Caverley  v.  Caverley  3 
Up.  Can.  Rep.  338,  0.  S. ;  Van  Vechten  v.  Hopkins,  5  Johns.  211;  Caldwell  v.  kbbej, 
Hardin,  529;  McCuen  v.  Ludlam,  2  Harr.  12;  Beswick  v.  Chappel,  8  B.  Mon.  486; 
Benaway  v.  Coyne,  3  Chand.  (Wis.),  214;  Vaughan  v.  Havens,  8  Johns.  109; 
Gompertz  v.  Levy,  1  Perr.  &  Dav.  214;  Dodge  v.  Lacey,  2  Carter  (Ind.),  212; 
Cramer  v.  Noonan,  4  Wis.  231;  Stevens  t/.  Handley,  Wright  (Ohio.),  123.  Where 
the  charge  was  that  plaintiff  was  a  "  bunter,"  without  any  innuendo  to  explain  the 
meaning  of  that  term,  the  court  on  the  trial  refused  to  receive  evidence  of  the 
meaning  and  plaintiff  was  nonsuited.  (Rawlings  v.  Norbury,  1  Fost.  <fe  F.  341.) 
See  ante  note  2  p.  169. 

s  Rex  v.  Home,  2  Cowper,  688 ;  approved  Reg.  v.  Virrier,  4  Per.  tfc  I).  161. 

I I  Stark.  Sland.  418;  Rex  v.  Greepe,  2  Salk.  618;  1  L'd  Raym.  266;  12  Mod. 
139;  lSannd.248;  Van  Vechten  v.  Hopkins,  6  Johns.  220 ;  McClaughry  v.  Wetmore, 
6  Johns.  83  ;  Thomas  v.  Croswell,  7  Johns.  271 ;  Weed  v.  Bibbins,  82  Barb.  816. 

4  Barham  v.  Nethersole,  Yelv.  21. 


528  PLEADING.  [CL  XIII. 

sumption  of  the  innuendo." *  The  business  of  an  innuendo 
is  by  a  reference  to  preceding  matter  to  fix  more  precisely 
the  meaning.2  The  office  of  an  innuendo  is  to  explain 
not  to  extend  what  has  gone  before,  and  it  cannot  enlarge 
the  meaning  of  words,  unless  it  be  connected  with  some 
matter  of  fact  expressly  averred."  3  The  innuendo  "  is 
only  a  link  to  attach  together  facts  already  known  to  the 
court."  4 

§  336.  An  innuendo  cannot  perform  the  office  of  a  col- 
loquium ; 5  in  other  words,  the  want  of  a  colloquium  can- 
not be  supplied  by  an  innuendo.6     The  absence  of  a  col- 

1  Castleman  v.  Hobbs,  Cro.  Eliz.  428. 

2  Rex  v.  Aylett,  1  T.  R.  63 ;  Beardsley  v.  Tappan,  1  Blatch.  C.  C.  588 ;  see  ante, 
§  309. 

3  Patterson  v.  Edwards,  2  Gilman,  720;  Van  Vechten  v.  Hopkins,  5  Johns.  211. 
The  innuendo  cannot  introduce  new  matter.  (Taft  v.  Howard,  1  Chip.  275;  Nichols 
v.  Packard,  16  Verm.  83;  Weir  v.  Hoss,  6  Ala.  881,)  Or  change  the  ordinary 
meaning  of  language.     (Hays  v.  Mitchell,  7  Blackf.  117. 

4  Cooke  on  Defamation,  94. 

6  Fitzsimmons  v.  Cutter,  1  Aik.  33;  The  State  v.  Henderson,  1  Richardson,  179; 
Lindsey  v.  Smith,  7  Johns.  359;  "Ward  v.  Colyhan,  30  Ind.  396;  The  State  v.  Atkins, 
42  Verm.  352;  Stitzell  v.  Reynolds,  59  Penns.  488;  Emery  v.  Prescott,  54  Maine, 
389 ;  Patterson  v.  Wilkinson,  55  Maine,  42 ;  Beardsley  v.  Tappan,  1  Blatch.  C  C. 
588. 

6  Church  v.  Bridgman,  6  Mis.  190;  Milligan  v.  Thorn,  6  Wend.  412;  Sayre  v. 
Jewett,  12  Wend.  135;  Hawkes  v.  Hawkey,  8  East,  427;  Joralemon  v.  Pomeroy,  2 
New  Jersey,  271.  The  words,  "  Thereby  accusing  the  plaintiff  of  stealing,"  in  a  de- 
claration, immediately  following  words  alleged  to  have  been  spoken,  which  do  not  of 
themselves  amount  to  a  charge  of  larceny,  without  any  precise  colloquium  or  averment 
showing  such  to  have  been  the  intention,  are  not  sufficient  to  make  the  declaration 
good.  (Brown  v.  Brown,  2  Shep.  317.)  Where,  in  an  action  for  slander,  the  declara- 
tion alleged  that  the  defendant  h;id  said  of  the  plaintiff  that  he  had  set  fire  to  his 
own  premises,  innuendo  that  plaintiff  had  been  guilty  of  wilfully  setting  fire  to  the 
premises  which,  whilst  in  his  occupation,  had  been  destroyed  by  fire,  it  was  held,  on 
motion  in  arrest  of  judgment,  that  the  court  could  not  after  verdict  presume  that  the 
jury  had  found  that  defendant  meant  to  impute  to  plaintiff  that  he  had  done  it  unlaw- 
fully or  feloniously,  as  well  as  wilfully.  (Sweetapple  v.  Jesse,  2  Nev.  <fc  M.  36;  5  B. 
&  Adol.  27.)  In  slander,  the  declaration  stated  that  the  plaintiff  was  a  justice  of  the 
peace,  and  that  the  defendant,  meaning  to  injure  and  expose  him  to  prosecutiou  for 
corruption,  &c,  in  a  certain  discourse,  &c,  said  of  the  plaintiff,  in  his  office  of  just- 
ice: "L.  (meaning  the  plaintiff)  had  been  feed  by  A.  W.  (meaning  A.  W.,  who  lately 
had  a  cause  pending  and  determined  before  the  plaintiff),  and  that  he  (the  defendant 
meaning)  could  do  nothing  when  the  magistrate  was  in  that  way  against  him  (the  de- 


§  336.]  THE    COMPLAINT.  529 

loquium,  snowing  by  extrinsic  matter  that  the  words 
charged  are  actionable,  is  not  supplied  by  an  innuendo  at- 
tributing to  those  words  a  meaning  which  renders  them 
actionable.1  Words  not  in  themselves  actionable,  cannot  be 
rendered  so  by  an  innuendo,  without  a  prefatory  averment 
of  extrinsic  facts,  which  makes  them  slanderous.2  If  the 
words  charged  do  not  imply  a  criminal  charge,  subject  to 
infamous  punishment,  an  innuendo  will  not  help  them ; 
but  when  they  are  used  in  a  double  sense,  the  plaintiff 
may,  by  an  innuendo,  aver  the  meaning  with  which  he 
desires  it  to  be  understood  they  were  spoken,  and  the  jury 
may  find  whether  they  were  spoken  with  that  meaning  or 
not.3  Thus,  where  the  charge  was  that  the  plaintiff  lived 
by  swindling  and  robbing  the  public,  here  the  language 
might  mean  either  fraud  or  felony.  The  plaintiff,  in  his 
declaration,  alleged  that  it  meant  to  charge  him  with  being 
guilty  of  felony  and  robbery.     On  the  trial  it  was  held  to 


fendant  meaning).  After  verdict,  the  declaration  was  held  sufficient.  (Burtch  v. 
Nickerson,  17  Johns.  217.)  Where  the  words  in  themselves  were  such  as  were  usually 
applied  to  the  keeper  of  a  gambling  house,  and  obviously  imputed  to  the  plaintiff 
fraudulent  and  dishonorable  conduct;  held,  that  the  declaration  might  be  supported, 
although  the  words  might  not  be  capable,  by  innuendo,  of  being  referred  to  any  jiar- 
ticular  malpractice.  (Digby  v.  Thomson,  1  Nev.  &  M.  485.)  An  averment  in  a  de- 
claration that  the  defendant  had  spoken  of  and  concerning  the  plaintiff  these  words: 
"  N.  (meaning  the  plaintiff)  burnt  it  (meaning  the  store),  and  he  (meaning  the  plain- 
tiff) knew  it,  and  I  (meaning  the  defendant)  can  prove  it,"  preceded  by  a  colloquium 
that  the  words  were  spoken  of  and  concerning  the  burning  of  a  store  owned  by  the 
defendant,  and  followed  by  an  averment  that  the  words  were  intended  to  charge  the 
plaintiff  with  a  felonious  burning,  dec,  was  held  sufficient.  (Nichols  v.  Packard,  16 
Verm.  83.) 

1  Holton  v.  Muzzy,  30  Verm.  (1  Shaw),  365. 

a  Watts  v.  Greenleaf,  2  Dev.  115.  See  Brown  v.  Brown,  2  Shep.  317;  Harris  v. 
Burley,  8  N.  Hamp.  256 ;  Beswick  v.  Chappel,  8  B.  Monr.  486 ;  Dottarer  v.  Bushey, 
16  Penns.  204;  Lukehart  v.  Byerly,  53  Penns.  418;  Moseley  v.  Moss,  6  Gratt.  534; 
Wateon  v.  Hampton,  2  Bibb,  319;  Hale  v.  Blandy,  1  You.  &  Jar.  480.  A  declaration 
containing  words  which,  in  common  understanding,  would  import  the  crime  against 
nature,  preceding  them  with  an  averment  that  they  were  intended  to  charge  the  plain- 
tiff with  that  crime,  and  following  them  with  an  averment  that  they  Were  so  under- 
stood, is  good.     (Goodrich  v.  Woolcot,  3  Cow.  231 ;  affirmed,  5  Cow.  714.) 

8  Dottarer  v.  Bushey,  16  Penn.  St.  Rep.  (4  Harris),  204. 


530  PLEADING.  [Ch.  XHT. 

impute  only  a  charge  of  fraud,  and  as  a  charge  of  fraud  is 
not  actionable  per  se  the  plaintiff  failed  in  his  action.1 

8  337.  An  innuendo  cannot  extend  the  meaning  of  de 
famatory  matter,  unless  by  reference  to  matter  of  induce 
ment.     The  innuendo  must  be  supported  by  the  induce 
ment.2     Where  there  was  no  inducement,  and  the  allega 
tion  was,  "T.  Barham  (the  plaintiff)  hath  burnt  my  barn' 
(meaning  my  barn  at  that  time  full  of  corn)  ;  after  verdict 
for  the  plaintiff  judgment  was  arrested,  because  to  burn 
the  barn  was  only  a  trespass,  and  the  innuendo  meaning  a 
barn  full  of  corn,  extended  the  signification  of  the  word 
bwrn,)  and  was  unwarranted.3     It  should  have  been  averred 
that  the  plaintiff  had  a  barn  full  of  corn,  and  that  in  a 
conversation  about  that  barn,  the  defendant  had  spoken 
the  words  charged ;  then  the  innuendo  that  barn  meant 
"  my  barn  full  of  corn,"  would  have  been  good.     In  libel, 
an  innuendo  imputing  to  the  plaintiff  larceny  of  plants 
and  flowers  of  the  defendant,  and  motion  in  arrest  of  judg- 
ment, on  the  ground  that  larceny  could  not  be  committed 
of  flowers,  and  so  the  innuendo  was  too  large ;  it  was  held 
sufficient  after  verdict,  as  the  term  flowers  must  be  taken 
to  have  meant  such  flowers  as  were  capable  of  being  the 
subject  of  larceny,  by  being  detached,  or  otherwise.4    And 

1  Smith  v.  Carey,  3  Camp.  461.     See  post,  §  338. 

2  Taylor  v.  Kneeland,  1  Doug.  67;  The  State  v.  Henderson,  1  Rich.  179  ;  Stucker 
v.  Davis,  8  Blackf.  414.  A  judgment  in  slander  will  not  be  arrested  because  an  innu- 
endo enlarges  the  natural  meaning  of  the  words  spoken.  (Shultz  v.  Chambers,  8 
"Watts,  300;  Solomon  v.  Lawson,  8  Q.  B.  823.)  But  if  rejecting  the  innuendo  as  sur- 
plusage, the  words  are  not  actionable  per  se,  judgment  must  be  arrested.  (Barham  v. 
Nethersole,  Yelv.  21;  Gainsford  v.  Blatchford,  7  Price,  544;  6  Price,  36.) 

3  Barham  v.  Nethersole,  Yelv.  21.  I  saw  Peter  (plaintiff)  with  or  at  a  heifer  ;  in- 
nuendo committing  sodomy ;  after  verdict  for  plaintiff,  judgment  arrested,  because 
innuendo  not  warranted.  (Johnson  v.  Hedges,  6  Up.  Can.  Q.  B.  Rep.  337.)  He  (plain- 
tiff )  sheared  two  of  Zack  Austin's  sheep  and  kept  the  wool,  with  an  innuendo  but  no 
colloquium,  held  not  sufficient  to  show  a  cause  of  action.  (Brown  v.  Piner,  6  Ky- 
(Bush)  518.)« 

4  Gardiner  v.  Williams,  2  Cr.  M.  &  R.  78 ;  3  Dowl.  Pra.  Cas.  796.  In  this  case, 
one  of  the  counts  set  forth  the  following  pass-.ige  of  a  letter  from  the  defendant  to  one 
P. :  "I  have  reason  to  suppose  that  many  of  the  flowers  of  which  I  have  been  robbed 


§   337.]  THE    COMPLAINT.  531 

where  the  language  of  the  plaintiff,  as  clerk  of  a  company, 
was,  "  You  have  done  many  things  with  the  company  for 
which  you  ought  to  he  hanged,  and  I  will  have  you  hanged 
before,"  &c. ;  and  there  was  an  innuendo  that  the  plaintiff 
had  been  guilty  of  felonies  punishable  by  law  with  death 
by  hanging,  on  motion  in  arrest  of  judgment,  it  was  held 
sufficient.1  The  word  forsworn  cannot  by  an  innuendo 
alone  be  interpreted  perjury.  Thus  where  the  allegation 
was,  "John  Holt  (meaning  the  plaintiff)  hath  forsworn 
himself  (meaning  that  the  plaintiff  had  committed  wilful 
and  corrupt  perjury)  ;  after  verdict  for  the  plaintiff  judg- 
ment was  arrested,  because  the  innuendo  was  unwarranted 
by  any  inducement.2  In  slander,  the  plaintiff  averred  that 
he  had  in  due  manner  put  in  his  answer  on  oath  to  a  bill 
filed  against  him  by  the  defendant  in  the  Court  of  Exche- 
quer, but  did  not  proceed  to  aver  any  colloquium  respect- 
ino;  that  answer,  with  reference  to  which  the  words  were 
spoken ;  and  then  alleged  that  the  defendant  said  of  him 
that  he  was  -forsworn,  innuendo  that  the  plaintiff  had  per- 
jured  himself  in  what  he  had  sworn,  in  his  aforesaid  an- 
swer to  the  said  bill ;  held,  that  this  innuendo  could  not, 
without  the  aid  of  such  a  colloquium,  enlarge  the  sense  of 
the  words  by  referring  them  to  the  answer  averred  in  the 
prefatory  part  of  the  declaration  to  have  been  put  in.3 
Where  the  declaration  only  alleged  the  intention  to  im- 
pute misconduct,  and  that  the  defendant  maliciously  pub- 
lished a  notice,  "That  any  person  giving  information  where 


are  growing  upon  your  premises"  (thereby  meaning  that  the  plaintiff  had  been  guilty 
of  larceny,  and  had  stolen  from  the  defendant  certain  plants,  roots,  and  flowers  of  the 
defendant,  and  had  unlawfully  disposed  of  them  to  P.,  and  unlawfully  placed  them  in 
P.'s  garden.)  The  previous  part  of  the  letter  stated  that  the  plaintiff,  whom  P.  had 
taken  into  his  employ  as  a  gardener,  had  been  in  the  defendant's  employ  in  1 1 1 < -  same 
capacity,  and  had  been  discharged  for  dishonesty  ;  held,  on  error,  that  the  innuendo 
■was  not  too  large.     (1  M.  k,  W.  245.) 

1  Francis  v.  Roose,  3  M.  &  W.  191. 

a  Holt  v.  Scholcfield,  6  Term  R.  691. 

8  llawkes  v.  Hawkey,  8  East,  427. 


532  PLEADING.  [Cll.  XIII. 

property  belonging  to  the  plaintiff,  a  prisoner  in  the  King's 
Bench  prison,  might  be  found,  should  receive  five  per  cent, 
on  the  goods  recovered,"  an  innuendo  that  thereby  the 
plaintiff  had  been  guilty  of  concealing  his  property,  with 
a  fraudulent  and  unlawful  intention,  was  held  bad,  on  de- 
murrer, as  enlarging  the  meaning  of  the  terms  used.1  In 
an  action  for  a  libel,  the  first  count,  after  the  usual  prefa- 
tory averments,  proceeded  thus:  "What  possessed  Lord 
H.  (meaning  thereby  the  said  Lord  Lieutenant  of  L*eland), 
if  he  knew  anything  about  the  country,  or  was  not  under 
the  spell  of  vile  and  treacherous  influence,  to  make  his 
first  visit,  and  that  carefully  puffed,  to  Longs,  the  coach- 
maker  (meaning  thereby  the  said  plaintiff),  the  other  day? 
If  mere  trade  was  his  (meaning  thereby  the  said  Lord 
Lieutenant's)  object,  he  had  several  respectable  houses 
open  to  him  "  (meaning  thereby  that  the  house  and  place 
of  business  of  the  said  plaintiff  were  not  respectable,  and 
that  the  said  visit  was  paid  thereto  for  political  objects). 
Held,  that  the  innuendo  did  not  enlarge  the  sense  of  these 
words,  which  were  fully  capable  of  the  meaning  given  to 
them.2  And  where  the  declaration  stated  that  the  plain- 
tiff was  a  trader,  and  employed  by  the  board  of  ordnance 
to  relay  the  entrance  to  their  office  with  new  asphalte,  and 
that  the  defendant  falsely  said  of  him  in  his  said  trade, 
and  in  reference  to  the  work :  "  The  old  materials  have 
been  relaid  by  you  in  the  asphalte  work  executed  in  front 
of  the  ordnance  office,  and  I  have  seen  the  work  done." 
Innuendo  that  the  plaintiff  had  been  guilty  of  dishonesty 
in  the  conduct  of  his  said  trade,  by  laying  down  again  the 
old  asphalte  which  had  been  before  used  at  the  entrance 
of  the  ordnance  office,  instead  of  new  asphalte,  according 


1  Gompertz  v.  Levy,  1  Perr.  <fe  Dav.  214. 

2  Barrett  v.  Long,  3  Ho.  of  Lords  Cas.  395.  Where  the  declaration  alleged  that 
plaintiffs,  A.  and  B.,  were  husband  and  wife,  and  that  defendant  alleged  that  the  female 
plaintiff  was  the  wife  of  one  C,  innuendo  that  B.  had  been  guilty  of  bigamy,  held 
that  the  innuendo  was  warranted.     (Heming  v.  Power,  10  M.  <fc  W.  564.) 


§  337.]  THE    COMPLAINT.  533 

to  his  contract.  Held,  on  motion  to  arrest  the  judgment, 
that  the  declaration  was  sufficient,  and  the  innuendo  was 
not  too  large,  as  it  put  no  new  sense  on  the  words,  but 
only  imputed  intention  to  the  speaker.1  Where  the  words 
set  forth  were,  that  A  was  murdered,  and  the  plaintiff  was 
concerned  in  it  and  had  a  hand  in  it,  innuendo  meaning 
that  the  plaintiff  aided  and  assisted  in  the  commission  of 
the  murder,  it  was  held  to  be  sufficient.2  The  first  count 
of  a  declaration  charged  the  speaking  these  words  of  and 
concerning  the  plaintiff:  "You  are  a  bloody  thundering 
thief,  and  all  your  family.  I  can  prove  you  and  them  to 
be  thieves.  I  can  prove  you  (meaning  plaintiff)  to  go 
down  the  river  (meaning  the  river  Thames)  with  ships  of 
eight  feet  water  (meaning  ships  drawing  eight  feet  water), 
charging  the  owners  for  ten  feet,  &c. ;  and  you  (meaning 
plaintiff)  are  obliged  to  move  from  one  parish  to  another" 
(meaning  thereby  that  the  plaintiff  was  guilty  of  dis- 
honesty, and  of  charging  more  for  the  pilotage  of  certain 
ships  than  he  was  by  law  entitled  to  do).  Held,  that  the 
words  were  actionable  without  any  innuendo,  but  that 
those  put  were  proper.8  "  I  have  heard  that  a  maid  of 
Sir  J.  K.'s  should  report,  that  he  being  sick  and  she  look- 
ing through  a  hole  of  the  door,  saw  a  priest  (innuendo  a 
popish  priest)  give  the  eucharist  and  extreme  unction ; " 
*  *  *  and  "  saw  a  popish  priest  anoint  (innuendo  ex- 
treme unction)  him."  Held,  after  verdict,  that  priest  was 
rightly  construed  popish  priest,  and  anoint  was  rightly 
construed  extreme  unction.4  Where  the  words  charged 
as  libellous  were,  "  Who  was  deprived  of  a  two-penny 
justiceship,  for  malpractice  in  packing  a  jury,"  and  they 
were  explained,  by  an  innuendo,  as  meaning  "that  the 

1  Baboneau  v.  Farrell,  15  C.  B.  360 ;  24  Law  J.  Rep.  (NT.  S.)  C.  P.  9 ;  1  Jur.  N.  S. 
114. 

2  Tenney  v.  Clements,  10  N.  Hamp.  52. 
6  Sempsey  v.  Levy,  2  Jurist,  776. 

4  Knightly  v.  Marrow,  3  Lev.  68. 


534  PLEADING.  [Cll.  XILT. 

plaintiff  had  packed  a  jury,  and  had  been  guilty  of  mal- 
practice in  packing  a  jury,"  it  was  held  that  the  innuendo 
was  warranted  by  the  words  charged.1 

§  338.  Where  language  is  ambiguous,  and  is  as  sus- 
ceptible  of  a  harmless,  as  of  an  injurious  meaning,  it  is 
the  function  of  an  innuendo  to  j)oint  out  the  mea/ning 
which  the  plaintiff  claims  to  be  the  true  meaning,  and  the 
meaning  upon  which  he  relies  to  sustain  his  action.  This 
applies  whether  the  ambiguity  be  patent  or  latent  (§  128),2 
and  whether  or  not  there  are  any  facts  alleged  as  induce- 
ment.3 By  this  means  the  defendant  is  informed  of  the 
precise  charge  he  has  to  meet,  and  to  deny  or  justify ;  but 
the  plaintiff  is  subjected  to  the  risk  that  if  he  claims  for 
the  language  a  meaning  which  is  not  the  true  one,  or  one 
which  he  is  unable  to  make  out  satisfactorily,  he  may  be 
defeated  on  the  ground  of  variance  or  failure  of  proof 
For  when  the  plaintiff,  by  his  innuendo,  puts  a  meaning 
on  the  language  published,  he  is  bound  by  it,  although 
that  course  may  destroy  his  right  to  maintain  the  action ; 
as  where  the  alleged  slander  was  that  "  Mrs.  B.'s  time 
has  come  around  (innuendo  that  the  usual  period  of 
parturition  had  arrived),  and  he  (plaintiff)  is  down  there 
getting  a  child  away  from  her.  He  is  procuring  an  abor- 
tion upon  her."  It  was  held  that  but  for  the  interpre- 
tation the   plaintiff  had,  by  the   innuendo,  put  on   the 


1  Mix  v.  Woodward,  12  Conn.  262.  In  an  action  for  slander,  the  innuendoes 
"meaning  to  insinuate  and  falsely  represent,"  "meaning  to  insinuate  and  be  under- 
stood," or  "  meaning  and  intending  to  represent,"  "  that  the  plaintiff  had  stolen  the 
money  aforesaid,"  indicate  that  the  defendant's  charge  against  the  plaintiff  was  that 
he  had  stolen  the  money,  and  therefore  were  sufficient.  (Hoyt  v.  Smith,  32  Vt.  (3 
Shaw),  304.) 

s  Griffith  v.  Lewis,  8  Q.  B.  841 ;  7  Adol.  &  El.  N.  S.  67 ;  Joralemon  v.  Pomeroy, 
2  New  Jer.  271 ;  Watson  v.  Nicholas,  6  Humph.  1*74.  But  "it  is  not  allowable  to 
interpret  what  has  no  need  of  interpretation."  (McCluskey  v.  Cromwell,  11  N.  Y. 
601 ;  and  ante,  note  p.  161.) 

3  Clegg  v.  Laffer,  3  Moo.  &  Sc.  727;  10  Bing.  350 ;  Williams  v.  Stott,  1  C.  &  M. 
675;  Smith  v.  Carey,  3  Camp.  461. 


§  339.]  THE   COMPLAINT.  535 

words  "her  time  lias  come  around"  the  words  were 
actionable,  but  with  that  meaning  they  were  not  action- 
able, and  plaintiff  was  bound  by  the  interpretation  he 
had  himself  supplied.1  And  so  where  the  plaintiff  alleged 
that  he  was  treasurer  and  collector  of  certain  tolls,  and 
that  defendant  published  of  him  (plaintiff),  as  such 
treasurer  and  collector,  "  You  are  gathering  the  toll  for 
your  own  pocket,"  innuendo  that  plaintiff,  being  such 
treasurer  and  collector,  was  guilty  of  collecting  tolls  to 
improperly  apply  them  to  his  own  use ;  on  the  trial,  the 
plaintiff  having  proved  that  he  was  treasurer  only,  and 
not  collector,  the  variance  was  considered  fatal,  and  the 
plaintiff  was  nonsuited ;  for  the  words  were  applicable  to 
the  plaintiff  rather  in  his  character  of  collector  than 
treasurer,  and  the  plaintiff  was  bound  to  prove  the  words 
applicable  to  the  plaintiff  in  the  manner  which  he  himself 
had  pointed  out  by  innuendo.2 

§  339.  If  the  innuendo  consists  of  two  distinct 
allegations,  which  can  be  separated  without  destroying 
the  sense  of  either  of  them,  and  one  of  them  is  and  the 
other  is  not  warranted  by  the  alleged  libellous  matter, 
the  latter  may  be  rejected,  and  the  count  will  be  valid.3 
Therefore,  in  an  action  of  slander,  where  the  words 
alleged  to  have  been  spoken  clearly  charged  the  killing 
of  a  horse,  and  the  innuendo  was  that  the  defendant 
intended  to  charge  the  plaintiff  with  arson,  it  was  held 
that  the  innuendo  might  be  stricken  out,  and  the  declara- 
tion sustained  upon  the  charge  of  killing  the  horse.4 

1  Butler  v.  Wood,  10  How.  Pra.  R.  222.  When,  at  the  close  of  the  trial,  the 
plaintiff  claimed  and  obtained  a  verdict  upon  a  meaning  different  from  thai  pointed 
by  his  innuendo,  a  new  trial  was  granted,  on  the  ground  of  surprise  upon  the  defend- 
ant. (Hunters.  Sharp,  4  Fost.  <fe  F.  983.)  (See  Gompertz  v.  Levy,  9  A.  <fc  E.  282; 
and  Smith  v.  Carey,  '■)  Camp.  I'll,  an'c,  3  336. 

4  Sellars  v.  Tell,  3  B.  &  C.  655  ;  see  ante,  note  6,  p.  512. 

'  Barrett  v.  Long,  8  Irish  Law  Rep.  331. 

*  Gage  v.  Shelton,  3  Rich.  212. 


536  pleading.  [Ch.  XIIL 

§  340.  Tlie  following  innuendoes  were  held  to  be 
proper,  without  any  inducement  to  support  them:  Bish- 
ops, innuendo  Bishops  of  England ; *  Ministers,  innuendo 
the  Ministers  of  the  King  of  England;2  The  Navy, 
innuendo  the  Royal  Navy  of  this  kingdom ; 8  Chevalier, 
innuendo  the  Pretender ; 4  Little  Gentleman  on  the  other 
side  of  the  water,  innuendo  the  Prince  of  Wales ; 5  Door, 
innuendo  The  Outer  Door ; 6  Death,  innuendo  Murder ; 7 
His,  innuendo  the  defendant ; 8  mere  man  of  straw,  innu- 
endo he  was  insolvent.9  M.  G.  (the  plaintiff's  son  and 
servant)  uses  two  balls  to  his  mother's  steelyard,  innuendo 
that  plaintiff,  by  M.  G.  as  her  servant,  used  fraudulent 
weights,  and  cheated  in  her  trade.10 

§  341.  The  following  innuendoes  were  held  to  be 
unwarranted,  there  being  no  inducement  to  support 
them :  Thomaston,  innuendo  the  State  Prison  situate  in 
the  town  of  Thomaston ; n  He  fired  his  house,  innuendo 
he  voluntarily  fired  his  house ; 12  She  is  sick,  innuendo  she 
has  had  a  child ; 13  Tan-money,  innuendo  money  the 
produce  of  the  sale  of  Tan ; 14  She  is  a  bad  girl,  innuendo 
a  prostitute ; 15  Public  house,  innuendo  a  bawdy  house ; 16 

I  Baxter's  Case,  3  Mod.  69. 
*2  Anon.  11  Mod.  99. 

3  Tutchin's  Case,  6  State  Trials,  590. 

4  Rex  v.  Matthews,  9  State  Trials,  682. 

6  Anon.  11  Mod.  99. 

e  Rex  v.  Aylett,  1  T.  R.  63. 

7  Oldham  v.  Peake,  2  W.  Black.  959. 

8  Muck's  Case,  8  Mod.  30.     Filly  horse,  innuendo  the  plaintiff's  wife,  his  name  being 
Hoss.     (Weir  v.  Hoss,  6  Ala.  881;  and  see  ante,  note  p.  163.) 

9  Eaton  v.  Johns,  1  Dowl.  Pra.  Cas.  N.  S.  602. 

10  Griffiths  v.  Lewis,  1  Law  Times,  111;  8  Q.  B.  841. 

II  Emery  v.  Prescott,  54  Maine,  389. 
u  Anon.  11  Mod.  220. 

13  Smith  v.  Gafford,  33  Ala.  108, 

14  Day  v.  Robinson,  1  Ad.  &  Ell.  554. 
16  Snell  v.  Snow,  13  Mete.  278. 

19  Dodge  v.  Lacey,  2  Cart.  212 ;  ante,  note  3,  p.  188. 


§  342.]  THE    COMPLAINT.  537 

Thou  hast  stolen  half  an  acre  of  my  corn,  innuendo  the 
corn  growing  upon  half  an  acre  of  ground  reaped  and  put 
into  shocks  by  the  defendant ; 1  You  are  a  regular  prover 
under  bankruptcies,  innuendo  that  plaintiff  was  accus- 
tomed to  prove  fictitious  debts  under  commissions  of 
bankruptcy ; 2  He  had  corn  from  B.'s  barn,  innuendo  that 
he  had  stolen  corn  from  B. ; 3  My  landlord,  innuendo  the 
plaintiff;4  Your  father,  innuendo  the  plaintiff;5  Thy 
son,  innuendo  the  plaintiff;6  He  lost  no  time  in  transfer- 
ring himself,  together  with  £ of  John  Bull's  money, 

to  Paris,  where  he  now  out-tops  princes  in  his  style  of 
living,  innuendo  that  the  plaintiff  had  thereby  cheated 
John  Bull.7 

§  342.  Evidence  cannot  be  introduced  to  support  or 
explain  an  innuendo. s  "  I  never  knew  an  innuendo 
offered  to  be  proved."9  Its  truth  must  always  appear 
from  precedent  averments.10  An  issue  cannot  be  raised 
upon  the  truth  of  an  innuendo.11  Where  an  averment  or 
colloquium  introduces  extrinsic  matter  into  a  complaint, 

1  Castleman  v.  Hobbs,  Cro.  Eliz.  428. 

2  Alexander  v.  Angle,  1  Tyrw.  9 ;  1  C.  &  J.  143;  1  Bing.  119  .  4  M.  &  P.  870. 

3  Wheeler  v.  Haines,  1  Perr.  &  Dav.  55 ;  9  Adol.  <fc  Ell.  286  n ;  Harvey  v.  French, 
2  Moo.  &  S.  591. 

4  Cro.  Car.  40 ;  1  Stark.  Sland.  386. 

6  Golds.  187;  Cro.  Eliz.  416,  439  ;  Cro.  Car.  92,  173;  Mo.  365. 

6  Shalmer  v.  Foster,  Cro.  Car.  177;  but  see  Wiseman  v.  Wiseman,  Cro.  Jac.  107, 
where  it  was  alleged  the  defendant  spoke  the  words  de  prafato  querente  existente 
fratre  .suo  nalvrali,  and  adjudged  for  plaintiff.  Where  the  description  may  apply  to 
one  of  a  class,  as  brothers  or  sons,  it  is  unnecessary  for  the  plaintiff  to  aver  that  he 
is  the  only  brother  or  only  son.     (1  Stark.  Sland.  388.)     See  ante,  note  1,  p.  517.) 

1  Trisarri  v.  Clements,  3  Bing.  432. 

B  The  State  v.  Henderson,  1  Richardson,  179  ;  Van  Vechtcn  v.  Hopkins,  5  Johns. 
211 ;  Gidney  v.  Blake,  11  Johns.  54;  see  Johnston  v.  McDonald,  2  Up.  Can.  Q.  B.  Rep. 
209. 

J  Pi  llexfen  arg.  Rosewell's  Case,  3  State  Trials,  1058,  admitted  by  court  and  oppo- 
site counsel,  cited  and  approved  Van  Vechtcn  v.  Hopkins,  5  Johns.  226. 

10  Taylor  v.  Kneeland,  1  Douglass,  67. 

11  Fry  v.  Bennett,  5  Sandf.  54  ;  Commonwealth  v.  Snelling,  15  Pick.  335.  Justify- 
ing an  innuendo,  see  Biggs  v.  Gt.  East.  R.  R.,  16  Weekly  Rep.  908. 

35 


538  .  PLEADING.  [Ch.  XIII. 

that  is  proper  subject  of  proof.1  Whether  the  language 
is  capable  of  bearing  the  meaning  assigned  by  the  innu- 
endo, is  for  the  court ;  whether  the  meaning  is  truly 
assigned  to  the  language,  is  for  the  jury.2 

§  343.  Where  the  language  is  not  in  itself  applicable 
to  the  plaintiff,  no  innuendo  can  make  it  so.3  But  where 
the  matter  published  on  its  face  appears  to  apply  to  a 
class  of  individuals,  the  plaintiff  may,  by  an  innuendo, 
show  that  the  publication  applied  to  him ;  that,  is  not 
extending  the  sense  of  the  matter.  Therefore,  where  the 
declaration  alleged  that  the  plaintiff  was  owner  of  a 
factoiy  in  Ireland,  and  charged  that  the  defendant  pub- 
lished of  him  and  of  the  said  factoiy  a  libel,  imputing 
that,  "  in  some  of  the  Irish  factories "  (meaning  thereby 
the  plaintiff's)  "  cruelties  were  practised,"  though  there 
was  no  allegation  otherwise  connecting  the  libel  with  the 
plaintiff,  was,  after  verdict,  held  good.4  If  the  plaintiff 
is  designated  by  another  name  in  the  libel,  his  real  name 
may  be  designated  by  inducement  and  an  innuendo?     In 

1  VanVechten  v.  Hopkins,  5  Joans.  24. 

3  Blagg  v.  Start,  10  Q.  B.  899  ;  Broome  v.  Gosden,  1  C.  B.  728  ;  Barrett  v.  Long, 
3  Ho.  of  Lords  Cas.  395;  Babonneau  v.  Farrell,  15  C.  B.  360 ;  Hemmings  v.  Gason,  5 
Irish  Law  Rep.  498. 

3  See  in  note  to  §  131  ante. 

4  Le  Fanu  v.  Malcomson,  1  House  of  Lords  Cas.  637;  13  Law  Times,  61 ;  Parker 
v.  Raymond,  3  Abb.  Pra.  Rep  N.  S.  343 ;  Marsden  v.  Henderson,  22  Up.  Can  Q.  B. 
Rep.  585.  There  needs  no  innuendo  when  the  words  are  spoken  to  the  plaintiff  him- 
self. (2  Rolle  Rep.  243.)  "  You  have  bewitched  my  mare,"  innuendo  the  mare  of 
the  plaintiff  instead  of  the  defendant,  held  good  after  verdict.  (Smith  v.  Cooker,  Cro. 
Car.  512),  but  see  ante,  note  5,  p.  516. 

*  Hays  v.  Brierly,  4  Watts,  392.  "  Mr.  Deceiver  "  (meaning  the  plaintiff),  held 
good  on  writ  of  error.  (Fleetwood  ><.  Curie,  Cro.  Jac.  557.)  The  following  was  held 
sufficient  to  point  out  the  plaintiff:  "  This  diabolical  character,  like  Polyphemus,  the 
man-eater,  has  but  one  eye,  and  is  well  known  to  all  persons  acquainted  with  the  name 
of  a  certain  circumnavigator,"  meaning  to  allude  to  the  plaintiffs  name.  (J'Anson 
v.  Stuart,  1  T.  R.  748.)  A  declaration  in  slander,  which,  averring  a  colloquium  con- 
cerning the  plaintiff  and  A.,  charged  the  defendant  with  saying  that  A.  thinks  it  a 
hard  matter  to  commit  fornication  with  "  his  niece  "  (meaning  the  plaintiff),  was  held 
sufficient,  without  an  averment  that  the  plaintiff  was  A.'s  niece.  (Miller  v.  Parish,  8 
Pick.  384.) 


§  343.]  THE    COMPLAINT.  539 

libel  the  plaintiff  averred  that  she  was  the  mother  of  one 
Edward  J.  Barker,  and  that  defendant,  knowing  this,  to 
defame  her,  published  "  of  the  Barkers — that  was  the 
name  of  his  reputed  father,  what  was  his  mother's  I  either 
never  knew  or  have  forgot,  but  I  know  it  was  not  Barker," 
innuendo  that  plaintiff  was  the  mother  of  an  illegitimate 
child,  on  demurrer  held  that  the  declaration  was  good.1  A 
count  in  libel,  after  averring  that  a  sum  of  money  was 
standing  in  the  Bank  of  England,  at  the  time  of  the 
death  of  one  W.  T.,  in  his  name,  alleged  that  the  defend- 
ant published  concerning  the  plaintiff,  and  concerning 
such  money,  the  following  libel :  "  There  is  strong  reason 
for  believing  that  a  considerable  sum  of  money  was  trans- 
ferred from  Mr.  T.'s  (meaning  the  said  W.  T.'s)  name  in 
the  books  of  the  Bank  of  England,  by  power  of  attorney 
obtained  from  him  by  undue  influence,  after  he  became 
mentally  incompetent  to  perform  any  act  requiring  reason 
and  understanding  "  (thereby  meaning  that  the  plaintiff 
had  transferred,  or  caused  to  be  transferred,  the  said 
money  from  the  said  W.  T.'s  name  in  the  said  books  of 
the  said  bank,  by  means  of  a  power  of  attorney  obtained 
by  him  from  the  said  W.  T.,  by  undue  influence  exercised 
by  him  over  the  said  W.  T.,  at  a  time  when  the  said  W.  T. 
had  become  mentally  incompetent  to  give  a  power  of 
attorney,  and  to  perform  any  act  requiring  reason  and 
understanding).  Held,  after  verdict  for  plaintiff,  on 
motion  in  arrest  of  judgment,  that  the  libel  was  suffi- 
ciently shown  to  point  to  the  plaintiff.3  Averments  were 
introduced  into  the  declaration,  of  words  spoken  by  the 
defendant  imputing  dishonesty  to  L.,  the  name  of  L. 
being  followed  by  the  innuendo,  "  meaning  the  plaintiffs' 
a^ent  and  clerk,"  but  there  was  nothing  else  in  the 
declaration  showing  any  connection  between  L.  and  the 

1  Anderson  v.  Stewart,  8  Up.  Can.  Q.  B.  Rep.  243 ;  and  see  ante,  note  6,  p.  537. 
■  Turner  v.  Merrywether,  13  Jut.  683;  18  Law  Jour.  C.  P.  155;  12  Law  Times, 
474. 


540  PLEADING.  [CL  XIII. 

plaintiffs.  Held,  that  in  the  absence  of  a  direct  averment 
connecting  L.  with  the  plaintiffs  or  their  business,  the 
words  alleged  to  have  been  spoken  concerning  them  were 
not  actionable  in  favor  of  the  plaintiffs.1  Where  the 
alleged  libel  consisted  of  a  passage  in  a  newspaper  warn- 
ing certain  persons  to  avoid  the  traps  laid  for  them  by 
desperate  adventurers,  innuendo  the  plaintiff  amongst 
others,  was  after  verdict  held  sufficiently  to  point  out  the 
plaintiff.2  Where  there  was  no  colloquium  that  the 
defamatory  matter  was  concerning  the  justices  of  Suffolk, 
and  it  did  not  appear  on  the  face  of  the  alleged  libel  that 
it  applied  to  such  justices,  it  was  held  that  the  defamatory 
matter  could  not  be  connected  with  or  applied  to  such 
justices  by  means  of  an  innuendo.3 

§  344.  If  a  complaint  is  sufficient  without  the  innuendo, 
the  innuendo  may  be  rejected  as  surplusage  ; 4  the  innuendo 
may  always  be  rejected  when  it  merely  introduces  matter 
not  necessary  to  support  the  action,5  or  when  it  is  incon- 
gruous,6 or  too  broad ; 7  an  innuendo  that  the  attorney  gen- 
eral spoken  of  meant  the  attorney-general  for  the  County 
Palatine  of  Chester  was  so  rejected.8 


1  Smith  v.  Hollister,  32  Verm.  (3  Shaw),  695. 
3  Wakley  v.  Healey,  18  Law  Jour.  241,  C.  P. 

3  Rex  v.  Alderton,  Sayre,  280  ;  and,  to  the  like  effect,  Hawkes  v.  Hawkey,  8  East, 
427  ;  Savage  v.  Robery,  Cowper,  680. 

4  Commonwealth  v.  Snelling,  15  Pick.  335;  Moseley  v.  Moss,  6  Gratton,  534; 
Cooper  v.  Greeley,  1  Denio,  360 ;  Harvey  v.  French,  1  Cr.  &  M.  1,  affirmed  2  Mo.  & 
Sc.  591 ;  Gage  v.  Shelton,  2  Rich.  242  ;  Giles  v.  The  State,  6  Geo.  276. 

6  Thomas  v.  Crosswell,  7  Johns.  264;  Crosswell  v.  "Weed,  25  Wend.  621 ;  Carter  v. 
Andrews,  16  Pick.  1;  Carroll  v.  White,  33  Barb.  621;  Hudson  ».  Garner,  22  Miss.  (1 
Jones)  423;  Rodebaugh  v.  Hollingsworth,  6  Ind.  339. 

6  Gardiner  v.  Williams,  2  Cr.  M.  «fe  R.  78 ;  3  Dowl.  Pra.  Cas.  796. 

7  Benaway  v.  Coyne,  3  Chand.  (Wis.)  214 ;  Barrett  v.  Long,  3  Ho.  of  Lwds  Cas.  395. 

8  Roberts  v.  Camden,  9  East,  93  ;  and  see  Day  v.  Robinson,  4  Nev.  cfc  M.  S41 ; 
West  v.  Smith,  4  Dowl.  703.  Where  the  language  is  actionable  per  se,  special  dama- 
ges, although  alleged,  need  not  be  proved.  (Cook  v.  Field,  3  Esp.  Cas.  133  ;  Kelly  v. 
Huffington,  3  Cr.  C.  C.  81.) 


§  345.]  TILE   COMPLAINT.  541 

§  345.  Special  damages  or  those  damages  which  are  not 
the  necessary  consequence  of  the  language  complained  of 
[§§  197  to  202],  must  be  specially  alleged  in  the  com- 
plaint, or  the  plaintiff  will  not  be  allowed  on  the  trial  to 
go  into  evidence  to  prove  such  damages.1  Where  the  lan- 
guage is  actionable  per  se,  special  damage  need  not  be  al- 
leged ; 2  but  if  the  language  is  not  actionable  per  se,  special 
damage  must  be  alleged.  Allegations  of  special  damages 
are  not  traversable.  They  are  inserted  in  the  com- 
plaint to  apprise  the  defendant  of  what  he  must  be 
prepared  to  rebut  on  the  trial.3  Where  the  declara- 
tion set  forth  that  the  plaintiff  was  a  ship-master,  the 
words  defaming  him  as  such,  and  that,  by  reason  of 
the  same,  "  certain  insurance  companies  in  the  city  of 
New  York  refused  to  insure  any  vessel  commanded  by  him, 
or  any  goods  laden  on  board  any  vessel  by  him  com- 
manded ; "  Held,  that  the  allegation  was  too  general,  and 
that  proof  could  not  be  given  under  it  of  the  refusal  of  a 
particular  company  to  insure  the  plaintiff's  vessel.4  Where 
the  allegation  was,  that  certain  persons,  naming  them,  who 
would  otherwise  have  employed  plaintiff,  refused  so  to  do ; 
Held,  that  the  allegation  was  not  supported  by  evidence 
that  certain  other  persons  would  have  recommended  plain- 


1  Squier  v.  Gould,  14  Wend.  159;  Strang  v.  Whitehead,  12  Id.  64;  Roberts  v. 
Roberts,  5  B.  &  S.  385  ;  Kelly  v.  Huffington,  3  Cr.  C.  C.  81 ;  Birch  v.  Benton,  26 
Miss.  (5  Jones)  155  ;  Johnson  v.  Robertson,  8  Porter,  486 ;  Barnes  v.  Trundy,  31 
Maine,  (1  Red.)  321 ;  Bostwick  v.  Nicholson,  Kirby,  65  ;  Bostwick  v.  Hawlev,  76.  290 ; 
Shipman  v.  Burrows,  1  Hall,  399 ;  Harcourt  v.  Harrison,  lb.  474 ;  Geare  v.  Britton, 
Bull.  N.  P.  7;  Wilson  v.  Runyon,  Wright,  651.  Nor  to  give  evidence  of  a  general 
loss  of  reputation.  (Ilerrick  v.  Lapham,  10  Johns.  281.)  A  complaint  for  words  in 
writing  charging  insanity  need  not  allege  special  damage.  (Perkins  v.  Mitchell,  31 
Barb.  461.)  So  in  an  action  by  one  of  several  partners.  (Robinson  *\  Marchant,  7  Q. 
B.  918.)  In  an  action  for  defaming  one  in  his  trade  no  allegation  of  special  damage 
is  necessary.  (Ingram  v.  Lawson,  6  Bing.  N.  C.  212;  Foulger  v.  Newcomb,  86  I. aw 
Jour.  Ex.  169;  Butler  v.  Howes,  7  Cal.  87.)  In  such  cases  the  occupation  supplies 
the  place  of  special  damage;  ante,  p.  256  n. 

8  Hicks  v.  Walker,  2  Greene  (Iowa),  440. 

*  Malony  v.  Dows,  15  How.  Pra.  R.  265. 

*  Shipman  v.  Burrows,  1  Hall,  399. 


542  PLEADING.  [Ch.  XIII. 

tiff  to  the  persons  named  in  the  declaration,  and  that  if  the 
plaintiff  had  been  so  recommended,  the  persons  named  in 
the  declaration  would  have  employed  him;  the  not  em- 
ploying being  not  on  account  of  the  slander,  but  of  the 
non-recommendation.1  In  an  action  ot  slander  imputing 
incontinence  to  the  plaintiff,  it  was  held  enough  to  state, 
that  the  plaintiff  was  occasionally  employed  to  preach  to  a 
dissenting  congregation  at  a  certain  licensed  chapel,  from 
which  he  derived  considerable  profit,  and  that,  by  reason 
of  the  scandal,  "  persons  frequenting  the  chapel  had  refused 
to  permit  him  to  preach  there,  and  had  discontinued  the 
emoluments  which  they  would  otherwise  have  given  him," 
without  saying  who  those  persons  were,  or  by  what  autho- 
rity they  had  excluded  him,  or  that  he  was  a  preacher  duly 
qualified  according  to  statute  (10  Anne,  c.  2)  ;2  and  in  an 
action  for  slander  for  words  spoken  of  the  plaintiff  in  his 
trade  or  business,  with  a  general  allegation  of  loss 
of  business,  it  is  competent  to  the  plaintiff  to  prove, 
and  the  jury  to  assess  damages  for  a  general  loss  or  de- 
crease of  trade,  although  the  declaration  alleges  the  loss  of 
particular  customers  as  special  damage,  which  is  not 
proved.8  As  a  general  rule  the  customers  should  be 
named,4  but  this  is  not  always  necessary.5     The  omission 

a  Strong  v.  Foreman,  2  C.  <fc  P.  592. 

2  Hartley  v.  Herring,  8  T.  R.  130. 

3  Evans  v.  Harries,  1  Hurl,  it  Nor.  251 ;  and  per  Martin  B.,  "How  is  a  public- 
house  keeper,  whose  only  customers  are  passers-by,  to  show  a  damage  resulting  from 
the  slander,  unless  he  is  allowed  to  give  general  evidence  of  a  loss  of  custom,"  (id.); 
and  see  Rose  v.  Groves,  5  M.  &  G.  613.  The  plaiutiff  may  aver  a  general  diminu" 
tion  of  business,  or  particular  instances  of  damage  ;  in  the  latter  case  the  names  of  the 
customers  lost  should  be  given.     (Hamilton  v.  Walters,  4  Up.  Can.  Rep.  24,  0.  S.) 

4  Mayne  on  Damages,  278, 317;  Feise  v.  Linder,  3  B.  <fc  P.  372  ;  Browning  v.  Xew- 
man,  1  Str.  666;  Westwood  v.  Cowne,  1  Stark.  172;  and  see  8  T.  R.  130;  1  Wms. 
Saund.  243.  In  New  York  it  was  held  that  a  general  averment  of  loss  of  customers 
is  not  a  sufficient  allegation  of  special  damages,  and  that  no  proof  of  loss  of  customers 
can  be  given  under  such  an  allegation.  (Tobias  v.  Harland,  4  Wend.  537;  and  see 
Halleck  v.  Miller,  2  Barb.  630.)  The  loss  of  a  customer  is  special  damage,  although 
if  the  dealing  had  taken  place  the  plaintiff  would  have  lost  by  it.     (Storey  v.  Chal- 

ands,  8  C.  &  P.  234.) 

6  Trenton  Ins.  Co.  v.  Perrine,  3  Zab.  402. 


§  3-4G.]  THE    COMPLAINT.  543 

of  the  names  of  the  customers  lost,  amounts  only  to  a  want 
of  deiiniteness,  and  in  New  York  is  to  be  taken  advantage 
of  by  a  motion  to*  make  definite  and  certain,  not  by  de- 
murrer. *  Where  the  supposed  special  damage  consists 
in  loss  of  marriage,  the  name  of  the  individual  with  whom 
the  marriage  was  contemplated  should  be  stated.2 

8  346.  Where  loss  of  certain  customers,  namino;  them, 
is  alleged,  the  best  evidence  in  support  of  such  allegation 
is  the  testimony  of  the  persons  named ; 8  and  so  where  it  is 
alleged  that  certain  persons,  naming  them,  refused  to  em- 
ploy the  plaintiff,  the  best  evidence  of  such  refusal  is  the 
testimony  of  the  persons  named.4  In  an  action  for  words 
not  actionable  per  se,  the  declaration  alleged  for  special 
damage,  that,  in  consequence  of  the  speaking  of  the  words, 
four  of  plaintiff's  customers  ceased  to  deal  with  him. 
Three  of  those  persons  proved  only  that  they  ceased  to 
deal  with  plaintiff  in  consequence  of  reports  they  had  heard 
in  the  neighborhood ;  but  the  fourth  proved  the  speaking 
by  the  defendant  of  words  substantially  as  charged,  and 
stated  that  he  did  not  deal  with  plaintiff  afterwards.  Held, 
some  evidence  of  special  damage.5 

1  Hewitt  v.  Mason,  24  How.  Pra.  R.  366  ;  and  by  15  and  16  Vict.  ch.  76,  abolishing 
special  demurrers,  the  right  to  demur  for  want  of  certainty  is  abolished  and  a  motion 
to  make  definite  substituted.  It  has  been  said  that  greater  certainty  is  required 
where  the  special  damage  is  the  gist  of  the  action,  than  when  it  is  merely  laid  by  way 
of  aggravation.  (Wetherell  v.  Clerkson,  12  Mod.  597 ;  Clarke  v.  Periam,  2  Atk.  33.) 
An  allegation  of  special  damage  must  be  specific.     (Cook  v.  Cook,  100  Mass.  194  ) 

a  1  Sid.  396;  ]  Vent.  4;  Cro.  Jac.  499;  12  Mod.  597;  and  loss  of  marriage  with 
any  other  than  the  one  mentioned  cannot  be  proved  (L'd.  Rayin.  1007)  as  to  alleging 
special  damage  in  action  for  slander  of  title.  See  ante  note  5  p.  315,  and  Moore  v. 
Meagher,  1  Taunt.  S  I. 

3Tilk  v.  Parsons,  2  Car.  &  P.  201 ;  Barnett  v.  Allen,  1  Fost.  &  F.  126  ;  King  v.. 
Watts,  8  C.  &  P.  614. 

4  Johnson  v.  Robertson,  8  Porter,  486. 

6  Bnteman  v.  Lyall,  7  C  B.  (K  S.  |  688.  Tn  King  v.  Townsend,  2  Law  Reporter, 
126  (appendix,  poet.)  tbe  special  damage  laid  was  that  A.  B.  had  by  reason  of  the 
libel  wholly  ceased  to  deal  with  Ihe  plaintiff,  the  proof  was  thai  A.  B.  had  nol  by 
reason  of  the  libel  dealt  with  the  plaintiff  to  so  great  an  extent  as  theretofore,  held 
that  this  was  sufficient  evidence  of  special  damage  to  sustain  the  declaration. 


544  PLEADING.  [Ch.  XIII. 

§  347.  A  plaintiff  may  "unite  in  one  complaint,  a  cause 
of  action  for  slander  with  a  cause  of  action  for  libel,  or  for 
malicious  prosecution,1  or  slander  of  title.2  Assault  and 
battery  cannot  be  united  with  slander  or  libel.3  A  cause 
of  action  in  a  plaintiff  singly  for  slander  of  him  in  his  part- 
nership business,  cannot  be  joined  with  a  cause  of  action 
in  him  and  his  partners  jointly.4  Several  sets  of  words, 
imputing  the  same  charge,  and  laid  as  of  the  same  time, 
may  be  included  in  one  count.5  You  may  put  into  one 
count  all  the  words  published  at  one  time,  but  not  words 
published  at  different  times.6  A  complaint  which  sets  out 
an  entire  conversation  in  which  the  slander  was  spoken, 
contains  only  one  cause  of  action  although  the  conversation 
consists  of  several  parts,  each  of  which  is  actionable.7  The 
second  count  of  a  declaration  in  slander  charged  that  in  an- 
other discourse  of  and  concerning  plaintiff,  &c,  the  defend- 
ant spoke  these  words :  "  You,  Mrs.  Gr.  (the  plaintiff),  have 
used  them  for  years,"  (innuendo  that  plaintiff  had  used 
fraudulent  weights,  and  cheated  in  her  trade)  ;  and  also  in 
the  last-mentioned  discourse,  in  answer  to  a  question  put 
by  the  plaintiff,  as  to  whether  the  defendant  had  said  to  one 
J.  G.  that  the  plaintiff's  son  had  used  two  balls  to  the 

1  Martin  v.  Mattison,  8  Abb.  Pra.  Rep.  3;  Sbore  v.  Smith,  15  Ohio,  173;  King  v. 
"Waring,  5  Esp,  13 ;  Manning  v.  Fitzherbert,  Cro.  Car.  271 ;  Hull  v.  Vreeland,  42  Barb. 
543;  Delegal  v.  Highley,  3  Bing.  JST.  C.  950. 

8  Cousins  v.  Merrill,  16  Up.  Can.  C.  P.  Rep.  114.  By  statute  in  Ireland,  in  an 
action  for  slander  or  libel,  counts  may  be  added  for  false  representation  of  plaintiff's 
goods.     (McXally  v.  Oldham,  8  Law  Times,  N.  S.  604.) 

3  Anderson  v.  Hill,  53  Barb.  238,  overruling  Brewer  v.  Temple,  15  How.  Pra.  Rep. 
286. 

4  Robinson  v.  Marchant,  7  Q.  B.  918. 

6  Rathbun  v.  Emigh,  6  Wend.  407 ;  Miligan  v.  Thorn,  6  "Wend.  412  ;  Dioyt  v.  Tan- 
ner, 20  "Wend.  190;  Churchill  v.  Kimball,  3  Ohio,  (Ham.)  409;  Hoyt  v.  Smith,  32 
Verm.  (3  Shaw)  304. 

6  Hughes  v.  Rees,  4  M.  &  W.  204.  It  is  allowable  to  include  in  the  same  declara- 
tion divers  distinct  words  of  slander  of  different  import.  (Hall  v.  Nees,  27  111.  411.) 
It  is  sometimes  a  question  whether  a  declaration  consisted  of  one  or  more  counts. 
See  Cheatham  v.  Tillotson,  5  Johns.  430;  Griffith  v.  Lewis,  8  Q.  B.  841. 

7  Cracraft  v.  Cochran,  16  Iowa,  301. 


§  348.]  THE    COMPLAINT.  545 

plaintiff's  steelyard,  these  other  words :  "  to  be  sure  I  did," 
&c. ;  and  also  these  other  words,  <fcc. ;  Held,  that  as  there 
was  but  one  continued  discourse  at  the  same  time,  this 
was  but  one  count,  although  the  words  set  out  were  di- 
vided into  several  sentences.1  In  New  York,  where  the 
complaint  contains  several  causes  of  action,  each  cause  of 
action  must  be  separately  stated  and  numbered,2  and  be 
perfect  in  itself.3 

§  348.  In  New  York  a  supplemental  complaint  is  per- 
mitted. A  plaintiff  in  an  action  for  libel  may  be  allowed 
to  serve  a  supplemental  complaint  setting  out  matter  ma- 
terial to  the  action,  occurring  after  the  commencement  of 
the  action.  And  in  that  case  a  supplemental  complaint 
was  allowed,  setting  up  alleged  special  damage  occasioned 
by  the  publication  of  the  libel,  and  occurring  after  the 
service  of  the  original  complaint.4 

1  Griffiths  v..  Lewis,  8  Q.  B.  841 ;  7  Law  Times,  17Y. 

'  Court  Rules,  19 ;  Pike  v.  Van  Wormer,  5  How.  Pra.  Rep.  171. 

3  Holt  v.  Muzzy,  30  Verm.  (1  Shaw)  365  ;  Sinclair  v.  Fitch,  3  E.  D.  Smith,  689. 

4  Scott  v.  Hallock,  MS.  Gen.  Term  Superior  Court  New  York,  19  Dec.  1857. 


CHAPTER  XIV. 

PLEADING. A15TSWEE. DEMEEEEE. 

The  answer  corresponds  to  plea —  What  it  must  contain — 
Plea  to  part  of  a  count — Answer  of  justification  must 
give  color,  show  a  lawful  occasion,  and  deny  malice — 
Several  answers — Defense  of  truth  must  he  pleaded — 
How  pleaded — Where  the  charge  is  general — Where  the 
charge  is  specific — Certainty  in  statement  of  facts — 
Answer  of  justification  bad  in  pxtrt,  bad  altogether — 
Mitigating  circumstances — Demurrer — Counter-claim. 

§  3'49.  The  answer  corresponds  to  the  plea  in  the 
common  law  system  of  pleading.  In  New  York  it  is 
provided  as  to  an  answer,  that  it  "must  contain  (1)  a 
general  or  specific  denial  of  each  material  allegation  of 
the  complaint  controverted  by  the  defendant,  or  of  any 
knowledge  or  information  thereof  sufficient  to  form  a 
belief;  (2)  a  statement  of  any  new  matter  constituting  a 
defense  or  counter-claim,  in  ordinary  and  concise  lan- 
guage, without  repetition."  And  with  regard  to  an 
answer  in  the  action  for  slander  or  libel,  it  is  also  pro- 
vided "  the  defendant  may,  in  his  answer,  allege  both  the 
truth  of  the  matter  charged  as  defamatory,  and  any  miti- 
gating circumstances  to  reduce  the  amount  of  damages ; 
and  whether  he  prove  the  justification  or  not,  he  may 
in  evidence   the  miti eating  circumstances."1     Mate- 


1  Code  of  Pro.,  §§  149,  165.  An  answer  which  merely  states  that  the  defendant 
did  not  utter  the  words  alleged  at  the  place  and  time  alleged,  may  be  good  as  a  gen- 
eral denial.  (Salenger  v.  Lusk,  7  How.  Pra.  Rep.  430.)  As  to  a  general  denial  in 
Maryland.  (Hagan  v.  Hendry,  18  Md.  177.)  A  plea  that  the  letter  containing  the 
defamatory  matter  was  intended  for  the  plaintiff  himself,  but  by  mistake  was  handed 
to  his  employer,  was  held  bad.     (Fox  v.  Broderick,  14  Irish  Law  Rep.  453.)     In  an 


ANSWER.  547 

rial  allegations  in  the  complaint  not  controverted  by  the 
answer  are  "  taken  as  true," 1  and  this  applies  to  allega- 
tions of  inducement.2  Objections  to  the  complaint  not 
taken  by  answer  or  demurrer,  are  deemed  waived  except 
only  the  objection  to  the  jurisdiction  of  the  court  and  the 
objection  that  the  complaint  does  not  state  facts  sufficient 
to  constitute  a  cause  of  action.3  The  defendant  is  not 
compelled  to  verify  his  answer.4 

§  350.  The  general  issue  in  an  action  for  slander  or 
libel  was  "  not  guilty ;"  and  this  had  probably  a  larger 
effect  than  has  a  "  general  denial "  under  the  New  York 
Code,  by  which  we  intend  that  under  the  "  general  issue  " 
matters  of  defense  were  admitted  which  would  not  be 
admitted  under  the  "general  denial."  Under  the  New 
York  system  of  pleading,  every  defense  not  consisting  of 
a  mere  denial  must  be  specially  pleaded.  Much  relating 
to  the  subject  of  the  plea  or  answer  has  been  anticipated 
(§§  211  to  216),  and  much  more  on  the  subject  will  be 
found  under  the  head  of  Evidence.  (§§  403-406.) 

§  350a.  As  the  inducement  must  be  stated  in  a  tra- 
versable form  (§  312),  so  a  denial  of  a  material  matter  of 
inducement  constitutes  a  good  defense,  as  where  the  dec- 
laration alleged,  by  way  of  inducement,  that  is  was  dis- 

action  for  libel  the  defendant  at  first  pleaded  not  guilty,  but  afterwards  pleaded,  to 
the  further  maintenance  of  the  action,  that  the  plaintiff  had  recovered  damages 
against  another  person  for  the  same  grievances.  New  assignment,  that  the  present 
action  was  brought  for  other  and  different  grievances.  Plea  to  new  assignment,  not 
guilty.  Held,  that  this  did  not  admit  the  innuendoes,  and  that,  by  pleading  not 
guilty  to  the  new  assignment,  the  defendant  had  raised  precisely  the  -tine  issue  as  if 
the  libel  had  been  set  out  in  the  declaration,  and  the  defendant  had  pleaded  not 
guilty  to  it.     (Brunswick,  Duke  of,  v.  Pepper,  2  Car.  &  K.  G83.) 

1  Code  of  Pro.,  §  108,  and  so  in  England,  Ileming  v.  Power,  10  M.  &  W.  507; 
G wyune  v.  Sharpe,  1  Car.  &  Mar.  532. 

2  Fradley  v.  Fradley,  8  C.  &  P.  5Y2. 

'  Code  of  Pro.,  §  148.  Admissions  in  the  answer  cannot  be  retracted  on  the  trial. 
(Whittemore  v.  Ware,  101  Mass.  353.) 

4  Laws  of  New  York,  1854,  p.  153;  Scoville  v.  New,  12  How.  I'ra.  Rep.  319; 
Blaisdell  v.  Raymond,  5  Abb.  Pra.  Rep.  144  ;  6  Id.  148. 


54S  PLEADING.  [Cll.  XIY. 

graceful  for  a  duly  qualified  physician  of  the  allopathic 
school  to  meet  one  of  the  homeopathic  school  in  con- 
sultation, and  then  alleged  that  defendant  had  published 
of  plaintiff  that  he  had  met  in  consultation  with  a  ho- 
meopathist,  the  plea  denied  that  it  was  disgraceful  for  a 
duly  qualified  physician  of  the  allopathic  school  to  meet 
one  of  the  homeopathic  school  in  consultation,  and  it  was 
held  a  good  plea ; 1  and  so  where  the  declaration  alleged 
that  the  term  black  sheep  was  used  in  a  defamatory 
sense,  and  that  the  defendant  had  applied  that  term  to 
the  plaintiff,  a  plea  denying  that  black  sheep  was  used  in 
a  defamatory  sense  was  held  good.2 

§  351.  It  was  held  in  New  York  that  a  plea  in  bar 
must  answer  the  whole  count,  but  that  one  plea  might 
state  several  defenses,  i.  e.,  different  defenses  to  different 
parts  of  one  count  or  statement  of  a  cause  of  action.3 
Perhaps  the  rule  is,  that,  if  the  matter  is  divisible,  al- 
though contained  in  one  count,  a  defendant  may  plead  to 
part  of  the  matter  of  one  count.4  If  the  part  of  the  charge 
not  expressly  covered  by  the  plea  does  not  amount  to  an 
actionable  charge,  then  the  plea  is  in  effect  to  the  whole 
count.5  A  plea  to  a  part  of  a  count,  and  that  part  not 
amounting  to  an  actionable  charge,  is  bad ;  as  where  the 

1  Clay  v.  Roberts,  8  Law  Times,  N.  S.  397. 

*  McGregor  v.  Gregory,  1 1  M.  &  W.  287. 

3  Cooper  v.  Greeley,  1  Demo,  365 ;  and  see  Ames  *'.  Hazard,  6  R.  I.  335.  That 
a  plea  may  apply  to  part  of  libel,  see  Spencer  v.  Southwick,  11  Johns.  573. 

4  See  Edwards  v.  Bell,  1  Bing.  403 ;  Cooper  v.  Lawson,  1  Perr.  &  D.  15 ;  O'Connell 
v.  Mansfield,  9  Ir.  Law  Rep.  179 ;  and  see  ante,  note  2  p.  201,  and  Torrey  v.  Fields,  10 
Verm.  353.  Where  the  first  count  in  a  declaration  for  a  libel,  alleged  that  plaintiff, 
a  proctor,  had  been  three  times  suspended,  and  the  second  count  alleged  the  having 
been  suspended  three  times  for  extortion ;  the  plea  as  to  so  much  of  the  charge  as 
imputed  one  suspension,  justified  it  as  being  true,  held  on  demurrer  that  the  plea 
was  good,  and  that  it  was  sufficiently  applicable  to  the  charge  in  the  first  count,  if 
not  to  that  in  the  second.     (Clarkson  v.  Lawson,  6  Bing.  587.) 

*  Barrows  v.  Carpenter,  1  Cliff.  204 ;  Clarke  v.  Taylor,  3  Scott,  95  ;  if  the  part  not 
justified  contains  ambiguous  statements,  the  court  will  not  draw  any  libellous  infer- 
ence from  them,  if  plaintiff  has  not  done  so  in  his  declaration.     {Id.) 


§§  352-3.]  answer.  549 

charge  was,  "Mr.  P.  (plaintiff)  told  me  he  had  given  my 
child  too  much  mercury,  and  poisoned  it"  and  the  justifi- 
cation was  only  of  so  much  only  as  charged  giving  too 
much  mercury.1 

§  352.  An  answer  of  justification  must  give  color  to 
the  extent  of  admitting,  for  the  purposes  of  the  answer 
only,  the  publication  complained  of.2  But  this  admission 
cannot  be  used  to  defeat  a  denial  by  a  separate  answer. 
Because  "one  plea  cannot  be  taken  to  help  or  destroy 
another,  but  every  plea  must  stand  or  fall  by  itself."3  A 
plea  of  privileged  publication  must  show  a  lawful  occasion, 
and  a  denial  of  malice ;  a  plea  which  only  alleged  that  the 
defendant  spoke  the  words  on  such  occasion,  firmly  be- 
lieving them  to  be  true,  was  held  bad  for  want  of  an 
express  or  implied  denial  of  malice.4 


§  353.  The  defendant  may,  in  one  answer,  set  up  a 
general  denial,  or  not  guilty,  and  a  justification  on  the 
ground  of  truth.5     But  he  cannot,  with  not  guilty  as  to 


1  Edsall  v.  Russell,  4  M.  &  Gr.  1090;  5  Sc.  K  R.  801. 

2  Fidler  v.  Delavan,  20  "Wend.  57  ;  Wilson  v.  Beighler,  4  Iowa,  427;  Vanderveer 
v.  Sutphin,  5  Ohio,  N.  S.  293;  Edsall  v.  Russell,  2  Dowl.  N.  S.  641;  5  Sc.  N.  S.  801 ; 
Davis  v.  Matthews,  2  Ham.  257 ;  Folsom  v.  Brown,  5  Foster,  (N.  Hamp.)  1 14  ;  Samuel 
v.  Bond,  Litt,  Sel.  Cas.  158;  Buddington  v.  Davis,  6  How.  Pra.  R.  402;  Porter  v. 
McCreedy,  1  Code  Rep.  N.  S.  88.  A  plea  of  justification  held  bad  unless  accompanied 
with  a  traverse  of  the  publication  in  a  manner  to  insult.  (Crawford  v.  Milton,  12  S. 
&  M.  328.)     See  Carlock  v.  Spencer,  2  Eng.  12. 

a  Grills  v.  Marwells,  Willis,  380 ;  Kirk  v.  Nowell,  1  T.  R.  125;  Montgomery  v. 
Richardson,  5  C.  &  P.  247 ;  and  see  cases  collected,  Voorhies'  Code,  296  c,  8th  edit. ; 
contra,  see  Jackson  v.  Stetson,  15  Mass.  4S;  Alderman  v.  French,  1  Pick.  1 ;  Cilley  v. 
Jenness,  2  N.  Hamp.  89;  Whittaker  v.  Freeman,  1  Dev.  280;  Wheeler  v.  Robb.  1 
Blackf.  330;  Wright  v.  Lindsay,  20  Ala.  428;  Doss  v.  Jones,  5  Howard  (Miss.),  158  ; 
Rev.  Stat,  of  Mass.  ch.  100,  §  18;  Hix  v.  Drury,  5  Pick.  260. 

4  Smith  v.  Thomas,  2  Bing.  N.  S.  372  ;  2  Sc.  543 ;  4  Dowl.  Pra.  Cas.  333.  Except 
in  defenses  of  privileged  publication,  the  denial  of  malice  forms  an  immaterial  issue. 
(Fry  v.  Bennett,  5  Sandf.  54.) 

6  Buhler  v.  Wentworth,  17  Barb.  649;  Hollenbeck  v.  Clow,  9  How.  Pra.  Rep. 
289;  Ormsby  v.  Brown,  5  Duer,  665;  Parson  v.  McComber,  3  Allen  (Mass.)  69; 
Miller  v.  Graham,  1  Brevard,  283;  Smith  /•.  Smith,  39  Penn.  St.  Rep.  Ill;  and  see 
Kelly  v.  Craig,  9  Humph.   215;  contra,  Attebury  v.  Powell,   29  Miss.  (8  Jones)  429. 


550  PLEADING.  [Cll.   XIV. 

tlie  whole  declaration,  plead  as  to  part  of  the  declaration, 
a  special  plea  of  apology  and  payment  into  court  under 
the  statute  6  &  7  Vict.  ch.  96.1  Although  a  defendant 
may  be  allowed  with  not  guilty  to  plead  the  mere  fact 
that  the  words  were  a  fair  comment  without  malice,  he 
cannot  with  not  guilty  interpose  a  plea  alleging  the  exist- 
ence of  certain  facts,  and  that  the  alleged  libel  was  a  fair 
comment  on  transactions  of  public  notoriety.  The  fact  of 
fair  comment  is  involved  in  not  guilty.2 

§  354.  A  defendant,  to  avail  himself  of  the  defense  of 
truth,  must  set  it  up  as  a  defense  by  plea  or  answer.3 
The  defense  of  truth  may  be  interposed,  although  the 
power  to  punish  for  the  offense  has  been  tolled  by  lapse 
of  time,4  or  although  the  plaintiff  has  been  tried  upon  the 
charge  and  acquitted 5  or  pardoned.6 

§  355.  That  the  justification  on  the  ground  of  truth 
must  be  as  broad  as  the  charge,  and  must  justify  the  pre- 

To  a  declaration  containing  three  counts  for  three  distinct  libels,  the  court  refused  to 
allow  the  defendant  to  plead  one  general  plea  of  justification.  (Honess  v.  Stubbs, 
7  C.  B.  N.  S.  555.)  Inconsistent  defenses  allowed.  (Horton  v.  Banner,  6  Ky. 
(Bush)  596;  Weston  v.  Lumley,  33  Ind.  486.) 

1  O'Brien  v.  Clement,  15  M.  &  W.  435;  3  D.  &  L.  676;  15  Law  Jour.  Rep. 
285,  Ex. 

2  Lucan  v.  Smith,  1  Hurl.  &  N.  481 ;  20  Jur.  1107.  The  fact  that  the  same  matter 
which  is  specially  pleaded  might  be  given  in  evidence  under  the  general  issue,  is  not 
always  a  sufficient  ground  for  rejecting  the  special  plea.  (Parker  v.  McQueen,  8  B. 
Monroe,  16.)  In  an  action  for  a  libel  contained  in  two  letters  published  in  a  news- 
paper, the  defendant  pleaded  that  the  second  letter  (itself  actionable)  was  a  fair 
comment  upon  the  facts  in  the  first  letter;  held  bad.  (Walker  v.  Brogden,  19  J. 
Scott,  N.  S.  64.)    See  §  409,  post. 

3  Ante,  §  211  to  216,  note  4  p.  327,  §  409,  post ;  Manning  v.  Clement.  7  Bing  367 ;  2 
Greenl.  Ev.  424 ;  Hagan  v.  Hendy,  6  R.  I.  335 ;  Frederitz  v.  Odenwalder,  2  Yeates, 
243  ;  Barrow  v.  Carpenter,  1  Cliff.  204.  The  plea  of  truth  is  an  issuable  plea.  (Wood- 
ward v.  Andrews,  1  Brev.  310.) 

4  Ankin  v.  Westfall,  14  Johns.  234.  Where  the  words  were  actionable  per  se,  a 
plea  of  not  guilty  within  two  years,  held  good.  (Quinn  v.  Wilson,  13  Irish  Law 
Rep.  381.) 

6  Cooke  v.  Field,  3  Esp.  133  ;  England  v.  Burke,  Id.  80. 
6  Ante,  note  4  p.  327,  and  §  158. 


§  355.]  answer.  551 

cise  charge,  has  already  been  considered.1  (§212.)  We 
have  now  but  to  point  out  some  other  requisites  of  a  plea 
or  answer  on  the  ground  of  truth.  These  depend  upon 
whether  the  charge  is  general  or  specific.  Where  the 
charge  is  in  general  terms,  the  answer  must  state  the  facts 
which  show  the  charge  to  be  true.  It  is  not  sufficient 
merely  to  allege  that  the  charge  is  true.2  As  if  the 
charge  be  that  the  plaintiif  is  a  swindler,3  or  a  thief,  or  a 
perjurer,  or  a  murderer,4  or  that  he  stole  a  watch,5  or  cer- 
tified a  lie,6  or  was  of  intemperate  habits,7  or  received  a 
bribe,8  or  perverted  the  law.9     The  distinction  seems  to 

1  Where  the  charge  was,  "  I  caution  you  against  M.  W.  (plaintiff),  she  came  here 
an  excommunicated  prostitute,  the  outcast  of  a  barrack,  held  that  a  plea  that, 
plaintiff  was  a  prostitute,  was  not  a  justification.  (Wright  v.  Sullivan,  Hayes  Ir.  Ex- 
Kep.  104.) 

'  Fry  v.  Bennett,  5  Sandf.  69  ;  Lawton  w.  Hunt,  4  Rich.  458  ;  Atteberry  v.  Powell, 
29  Mis.  (8  Jones),  429  ;  Billings  v.  Waller,  28  How.  Pra.  Rep.  97 ;  Barrows  v.  Carpen- 
ter, 1  Cliff.  204 ;  Cook  v.  Tribune  Asso.,  5  Bl.  C.  C.  352 ;  Bruton  v.  Downes,  1  Fost.  & 
F.  668 ;  Holmes  v.  Catesby,  1  Taunt.  543.  Where  a  particular  meaning  is  alleged,  it 
is  not  sufficient  to  say  the  charge  is  true,  with  the  addition  of  time,  place,  and  cir- 
cumstance. (Fidler  v.  Delavan,  20  Wend.  57.)  A  man  cannot  defame  in  one  sense 
and  justify  in  another.  (Id. ;  Kerr  v.  Force,  3  Cr.  C.  C.  8.)  But  since  the  common 
law  procedure  act  in  England,  a  general  plea  of  justification  is  allowed  there,  but  in 
such  case  the  plaintiff  is  entitled  to  particulars  of  the  charges  intended  to  be 
justified.  (Bebrens  v.  Allen,  8  Jur.  IS".  S.  118;  Jones  v.  Bewick,  Law  Rep.  V, 
C.  P.  32.) 

3  J' Anson  v.  Stuart,  1  T.  R.  748.  It  is  not  a  justification  of  a  charge  of  plaintiff 
being  a  swindler  to  allege  that  defendant  delivered  to  plaintiff  goods  to  sell  on  com- 
mission, that  he  failed  to  return  them  or  to  account  for  them,  and  that  he  made 
an  assignment  for  the  benefit  of  his  creditors.  (Herr  v.  Bamberg,  10  How.  Pra. 
Rep   128.) 

4  Anon.  3  How.  Pra.  Rep.  406;  4  Id.  98,  347;  Sayles  v.  Wooden,  6  Id  84;  Johnson 
v.  Stebbins,  5  Ind.  364.  Where  the  words  complained  of  were,  "  She  is  a  thief,  and 
has  stolen  my  gold  pen  and  pencil,"  held  that  the  answer  might  properly  allege  a 
variety  of  thefts  by  the  plaintiff  of  different  articles,  as  going  to  justify  the  words 
"  She  is  a  thief,"  (Jaycocks  v.  Ayres,  7  How.  Pra.  Rep.  215.)  A  charge  of  forgery 
against  a  whole  community  was  held  to  be  justified  by  alleging  a  falsification  of  poll 
books.     (Fellows  v.  Hunter,  20  Up.  Can.  Q.  B.  Rep.  382.) 

6  Anibal  v.  Hunter,  6  Plow.  Pra.  Rep.  255. 

6  Jones  v.  Cecil,  5  Eng.  593. 

7  Buddington  v.  Davis,  6  How.  Pra.  Rep.  401. 

8  Van  Xe39  v.  Hamilton,  19  Johns.  349. 

9  Riggs  v.  Denniston,  3  John3.  Cas.  198.     In  an  action  of  slander,  when  the  charge 


552  PLEADING.  [Ch.  XIV. 

be  that  where  the  charge  is  a  conclusion  or  inference  from 
certain  facts,  there  the  plea  must  set  up  the  facts  which 
warrant  such  an  inference;  "but  where  the  charge  is  of 
some  specific  act  or  acts,  there  it  is  sufficient  if  the  plea 
allege  that  the  charge  is  true.  Thus  if  it  be  said  of  a  man, 
that  he  is  a  swindler,  this  is  an  inference  from  his  actions 
and  which  can  be  proved  only  by  showing  acts  of  fraud 
on  the  part  of  the  plaintiff  amounting  to  swindling ;  and, 
therefore,  as  we  have  seen,  to  justify  a  charge  of  being  a 
swindler,  the  plea  must  allege  the  facts  upon  which  the 
defendant  relies  to  make  out  the  charge.  Where  the  de- 
fendant attempted  to  justify  a  charge  of  fraud  by  setting 
up  in  his  plea  that  he  and  plaintiff  had  had  dealings 
together,  and  defendant  believing  that  plaintiff  had 
cheated  him,  and  in  consequence  of  such  belief,  and  be- 
lieving said  charge  to  be  true,  he  published  the  same,  the 
plea  was  set  aside  as  embarrassing  and  uncertain.1  When 
the  charge  is  general,  and  the  answer  merely  an  averment 
that  the  charge  is  true,  the  plaintiff  may,  under  the  New 
York  Code,  apply  to  have  the  answer  made  "  definite  and 
certain ;"  but  he  is  not  obliged  to  do  this,  he  may  lie  by, 
and  on  the  trial  object  to  the  reception  of  any  evidence  in 
support  of  such  a  plea,  either  in  bar  or  in  mitigation.2 


is  made  directly,  the  plea  of  justification  should  aver  the  truth  of  the  charge,  as  laid 
in  the  declaration  ;  but  when  the  charge  is  made  by  insinuation  and  circumlocution, 
so  as  to  render  it  necessary  to  use  introductory  matter  to  show  the  meaning  of  the 
words,  the  plea  should  aver  the  truth  of  the  charge  which  the  declaration  alleges 
was  meant  to  be  made.  (Snow  v.  Witcher,  9  Ired.  34G  ;  and  see  Behrens  v.  Allen,  3 
Fost.  &  F.  135.) 

1  Hennessey  v.  Morgan,  8  Ir.  L.  R.  N".  S.  lxix,  Appendix. 

*  Wachter  v.  Quenzer,  29  N.  Y.  553;  Tilson  v.  Clark,  45  Barb.  181;  and  see 
Brickett  v.  Davis,  21  Pick.  404.  Generally,  upon  the  trial  the  plaintiff  cannot  object 
to  the  insufficiency  of  a  plea  of  justification.  (Evans  ».  Franklin,  26  Mis.  (5  Jones,) 
252),  as  he  might  have  demurred;  but  if  the  justification  be  proved,  the  defendant  is 
entitled  to  a  verdict  on  that  plea.  (Edmonds  v.  Walter,  3  Stark.  R.  7);  and  see 
Churchill  v.  Hunt,  2  B.  &  A.  685 ;  1  Ch.  480 ;  contra,  as  to  a  notice  of  justification. 
(Thompson  v.  Bowers,  1  Doug.  321.)  Held  to  be  error  for  the  court  to  charge  of  its 
own  motion  that  the  plea  is  so  defective  as  not  to  be  available  to  the  defendant. 
(Bryan  v.  Gurr,  27  Geo.  378.) 


§  356.]  answer.  553 

§  356.  As  to  specific  charges.  Where  the  charge  is 
specific,  there  the  answer  need  only  to  allege  that  the 
charge  is  true.  Thus  in  an  action  for  calling  the  plaintiff 
thief,  and  saying  he  stole  two  sheep  of  J.  S.,  the  defend- 
ant pleaded  that  the  plaintiff  stole  the  same  sheep,  by 
reason  of  which  he  (defendant)  called  plaintiff  thief,  as 
well  he  might,  and  the  plea  was  held  good.1  And  so 
where  the  charges  wTere  of  theft  of  certain  articles  speci- 
fied, and  of  practicing  prostitution,  specifying  instances ; 2 
and  where  the  charge  was  that  the  plaintiff,  as  inspector 
of  drugs,  had  improperly  passed  an  adulterated  article,  an 
answer  merely  alleging  the  charge  to  be  true  was  held  to 
be  sufficient.3  A  plea  that  the  defamatory  matter  "is 
true  in  substance  and  effect "  means  that  it  is  time  in 
every  material  particular.4  To  a  charge  of  being  a  liar,  a 
plea  that  "  sundry  honest  men,  to  wit,  A.  B.,"  &c,  nam- 
ing them,  "  and  others,  believed  and  considered  the  plain- 
tiff not  to  be  a  man  of  truth,  but  addicted  to  falsehood," 
would  not  be  sufficient  justification.5 

1  1  Rolle  Abr.  87.     Where  the  original  charge  is  in  itself  specific,  the  defendant 
need  not  further  particularize  it  in  his  plea.     (1  Stark.  Slan.  478.) 
8  Steinman  v.  Clark,  10  Abb.  Pra.  R.  132. 

3  Van  Wyck  v.  Guthrie,  4  Duer,  268.  A  general  plea  averring  the  plaintiff's  resi- 
dence in  0.  county,  his  being  known  to  divers  citizens  there,  and  having  a  bad  repu- 
tation among  them,  is  good.     (Cooper  v.  Greely,  1  Den.  347.) 

4  Weaver  v.  Lloyd,  4  D.  &  R.  230.  A  plea  to  an  action  for  libel  purporting  to  be 
the  report  of  a  trial  "  that  the  alleged  libel  was  in  substance  a  true  report  of  the 
trial,"  was  held  bad  on  demurrer.  (Flint  v.  Pike,  6  D.  &  R.  528 ;  4  B.  &  C.  473.) 
To  a  declaration  for  an  alleged  libel  published  in  a  newspaper,  purporting  to  be  an 
account  of  the  trial  of  an  action,  the  plea  stated  that  at  the  trial  the  counsel  made  the 
speech  set  out  in  .  the  alleged  libel,  and  that  certain  witnesses  proved  all  that  had 
been  so  stated ;  held  bad,  on  demurrer,  for  that  the  plea  ought  to  have  detailed  such 
evidence,  and  shown  the  truth  of  the  facts  so  stated,  and  not  merely  have  stated  the 
conclusion  which  the  party  himself  drew  from  the  evidence.  (Lewis  v.  Walter,  4  B. 
&  A.  605.) 

8  Brooks  v.  Bemiss,  8  Johns.  455 ;  see  Wilson  v.  Fitch,  to  be  reported,  40  or  41  Cal. 
Under  a  plea  of  justification  on  the  ground  of  truth,  the  defendant  cannot  show  thai,  he 
believed  the  charge  true.  (Ilix  v.  Drury,  5  Pick.  296.)  Justification  of  a  libel,  that 
from  what  had  been  said  there  was  a  reason  for  thinking  the  imputation  was  true  ;  held 
bad  on  demurrer,  unless  it  is  stated  what  had  been  said,  and  by  whom.  (Lane  v. 
Ilowman,  1  Price,  76.)    To  constitute  a  justification,  the  answer  should  aver  the  truth 

36 


554  PLEADING.  [Ch.  XIV. 

§  357.  The  facts  which,  show  the  charge  to  be  true 
must  be  stated  with  certainty,1  so  that  the  court  may  see 
whether  the  defendant  was  justified  in  what  he  pub- 
lished ; 2  and  (when  a  reply  was  necessary)  so  that  the 
plaintiff  might  have  an  opportunity  of  denying  and  tak- 
ing issue  upon  the  facts  alleged ;  and  it  was  no  excuse  for 
general  pleading  that  the  subject  comprehended  a  multi- 
plicity of  facts  tending  to  prolixity,  nor  that  the  plea  was 
not  more  general  than  the  charge.3  Where  a  declara- 
tion stated  that  plaintiff  was  lawfully  possessed  of  mines 
and  of  ore  gotten  from  them,  and  was  in  treaty  for  the 
sale  of  tha  ore,  and  that  the  defendant  published  a  mali- 
cious, injurious,  and  unlawful  advertisement,  cautioning 
persons  against  purchasing  the  ore,  <fcc,  per  quod  he  was 
prevented  from  selling;  to  which  the  defendant  pleaded 
in  justification,  that  the  shareholders  in  the  mines  thought 
it  their  duty  to  caution  persons  against  purchasing  the  ore, 
&c,  (pursuing  the  words  of  the  advertisement)  ;  this  plea 
was  held  ill  on  special  demurrer ;  first,  because  it  did  not 
disclose  the  names  of  the  adventurers,  or  who  they  were ; 
and  secondly,  because  it  did  not  show  that  the  defendant 
made  the  publication  under  the  direction  of  the  share- 
holders.4    And  where  the  plaintiff,  a  justice  of  the  peace, 

of  the  defamatory  matter  charged.  It  is  not  sufficient  to  set  up  the  facts  which  only 
tend  to  establish  the  truth  of  such  matter.  (Thrall  v.  Smiley,  9  Cal.  529.)  Where  it 
was  alleged  that  the  defendant  spoke  of  the  plaintiff,  "I  am  told  M.  (plaintiff)  was 
the  man  who  killed  the  pedler,  and  I  believe  it,"  a  plea  which  averred  that  defendant 
was  told  plaintiff  was  the  the  man  who  murdered  the  pedler,  and  that  the  defendant 
did  believe  it,  was  held  bad.  (Muma  v.  Harmer,  17  Up.  Can.  Q  B.  Rep.  293.)  Where 
the  charge  was :  "  There  is  no  doubt  but  that  he  (plaintiff )  abstracted  the  cable,"  in- 
nuendo stole  it.  A  plea  that  it  had  been  rumored  that  a  party  of  persons  including 
the  plaintiff  had  taken  said  cable,  held  no  justification.  (Ede  v.  Scott,  7  Ir.  L.  R.  N. 
S.  607.) 

1  Van  Ness  v.  Hamilton,  19  Johns.  349;  Riggs  v.  Denniston,  3  Johns.  Cas.  198. 
A  plea  of  justification  is  taken  most  strongly  against  the  pleader;  everything  must 
be  precisely  alleged ;  it  must  be  "certain  to  a  certain  intent  in  general."  (Kerr  v. 
Force,  3  Cr.  C.  C.  8.) 

5  Torrey  v.  Field,  10  Verm.  353;  Johnson  v.  Stebbins,  5  Ind.  364. 

3  Van  Ness  v.  Hamilton,  19  Johns.  349. 

4  Rowe  v.  Roach,  1  M.  &  S.  304. 


§  357.]  answee.  555 

brought  an  action  against  the  defendant  for  charging  him 
with  pocketing  all  the  fines  and  penalties  forfeited  by 
delinquents  whom  he  had  convicted,  without  distributing 
them  to  the  poor,  or  in  any  manner  accounting  for  a  sum 
of  £50  then  on  hand,  the  defendant  pleaded  that  the 
plaintiff  was  a  justice  of  the  peace,  and  that  during  the 
time  he  acted  as  such  he  convicted  sundry  persons  in  sun- 
dry sums  of  money,  for  divers  offenses  against  divers 
statutes,  which  sum,  amounting  together  to  £50,  he  re- 
ceived of  the  persons  so  convicted,  and  had  not  paid  over 
the  same  as  required  by  law.  On  sj)ecial  demurrer,  the 
plea  was  held  bad  (not  sufficiently  certain)  for  not  stat- 
ing the  names  of  the  persons  who  paid  said  sums  of 
money,  and  the  amount  which  each  person  paid.1  Where 
the  libel  stated  that  the  plaintiff,  as  manager  of  the  opera, 
employed  his  critics  in  attacking,  in  corrupt  and  pur- 
chased newspapers,  the  females  of  his  company,  it  was 
held  that  the  justification  of  such  a  charge  must  state  the 
names  of  the  critics,  of  the  females,  and  of  the  corrupted 
newspapers,  and  the  substance  of  the  articles,  and  the 
time  and  place  of  their  publication.2  But  where  the  libel 
charged  that  certain  exhibitions  of  opera  by  the  plaintiff 
were  an  unfit  resort  for  respectable  people,  and  that  they 
were  attended  by  persons  of  certain  specified  immoral  and 
illegal  occupations  or  pursuits — held  that  an  answer  justi- 
fying such  charge  need  do  no  more  than  reaffirm  the 
statement  contained  therein,  and  need  not  specify  the 
names  of  the  persons  who  attended  such  exhibitions ;  and 
certainly  this  will  be  the  case  where  the  defendant  alleges 
that  the  names  of  such  persons  are  unknown  to  him.3 
Where  the  charge  was  that  the  plaintiff  made  himself 
invisible  on  account  of  too  much  borrowing  and  not  pay- 


1  Newman  v.  Bailey,  2  Chit.  R.  665. 

4  Fry  v.  Bennett,  5  Sandf.  54. 

8  Maretzek  v.  Cauldwell,  2  Robertson,  715. 


556  PLEADING.  [Ch.  XIV. 

ing,  innuendo  that  plaintiff  ran  away,  held  that  an  answer 
which  stated  "  it  is  true  the  plaintiff  made  himself  invis- 
ible on  account  of  too  much  borrowing  and  not  paying, 
that  is,  ran  away,"  was  insufficient.1  And  in  an  action  of 
slander  in  charging  the  plaintiff,  a  pawnbroker,  with  the 
practice  of  duffing,  i.  e.  of  doing  up  damaged  goods  and 
pledging  them  again,  a  plea  alleging  that  the  plaintiff  did 
do  up  divers  damaged  goods  and  repledge  to  divers  per- 
sons, &c,  was,  on  special  demurrer,  held  bad,  for  not  stat- 
ing specific  instances  and  persons.2  And  where  the  libel 
charged  an  attorney  with  general  misconduct,  viz.  gross 
negligence,  falsehood,  prevarication,  and  excessive  bills  of 
costs  in  the  business  he  had  conducted  for  the  defendant, 
a  plea  in  justification  repeating  the  same  general  charges, 
without  specifying  the  particular  acts  of  misconduct,  was, 
upon  demurrer,  held  insufficient.3  A  declaration  alleged 
that  plaintiff  was  cashier  to  Q.,  and  that  defendant,  in  a 
letter  addressed  to  Q.,  wrote,  "  I  conceive  there  is  nothing 
too  base  for  him  (plaintiff)  to  be  guilty  of."  Plea,  in  jus- 
tification, alleged  that  plaintiff  signed  and  delivered  to 
defendant  an  I.  O.  U.,  and  afterwards,  on  having  sio-ht 
thereof,  falsely  and  fraudulently  asserted  that  the  signa- 
ture was  not  his ;  and  the  plea  averred  that  the  libel  was 
written  and  published  solely  in  reference  to  this  transac- 
tion. Held  a  sufficient  justification,  as  the  libel  must  be 
understood  with  reference  to  the  subject-matter.4  Where 
the  defendant,  a  railway  corporation,  published  a  placard 

1  Wachter  v.  Quenzer,  29  N.  Y.  552.  A  charge  of  moral  obliquity  must  be  proved 
by  some  act  done  mala  fide.     (Kerr  v.  Force,  3  Cr.  C.  C.  8.) 

5  Hickinbotham  v.  Leach,  2  Dowl.  Pra.  Cas.  K  S.  270;  10  M.  &  "W.  361.  To  an 
action  for  slander  in  charging  the  plaintiff  with  stealing  corn  and  fodder  from  various 
persons,  a  plea  of  justification  leaving  blanks  for  the  dates  and  amounts  would  be  bad 
on  special  exception,  but  cannot  be  attacked  on  a  general  exception.  (George  v. 
Lemon,  19  Texas,  150.) 

3  Holmes  v.  Catesby,  1  Taunt.  543. 

4  Tighe  v.  Cooper,  7  El.  <fc  B.  639 ;  21  Jur.  716.  A  plea  of  justification  need  not 
meet  the  exact  words  of  the  libel,  but  may  adopt  the  sense  put  by  the  innuendo,  and 
justify  that.     (O'Connor  v.  Wallen,  6  Irish  Law  Rep.  378.) 


§  358.]  answer.  557 

headed  "Caution,"  and  containing  the  plaintiff's  name 
and  address,  and  stated  that  he  had  been  convicted  of 
travelling  on  its  railway  without  having  first  paid  his 
fare.  In  an  action  for  libel,  the  declaration  contained  an 
innuendo  that  the  defendant  meant  thereby  that  the 
plaintiff  had  attempted  to  defraud  the  company ;  the  plea 
was  to  the  effect  that  the  plaintiff  was  charged  and  con- 
victed as  alleged ;  on  demurrer,  this  plea  was  held  good, 
as  containing  a  justification  of  the  charge  and  of  the 
innuendo.1 

§  358.  It  is  said  that  to  justify  a  charge  of  crime,  the 
plea  or  answer  must  specify  the  crime  with  certainty,2  and 
show  the  commission  of  the  crime  with  as  much  certainty 
as  in  an  indictment  for  such  crime.3  In  an  action  of 
slander  for  charging  the  plaintiff  with  having  stolen  the 
defendant's  shingles,  a  justification  stating  that  the 
plaintiff  had  sold  the  defendant  shingles  without  author- 
ity, and  afterward  denied  that  he  knew  anything  respect- 
ing them,  without  alleging  that  the  plaintiff  took  them 
privately  or  feloniously,  was  held  not  to  amount  to  a 
charge  of  larceny,  and  was  bad  as  a  justification.4  To  a 
charge  of  procuring  an  abortion,  it  was  held  not  a  sufficient 
plea  that  the  plaintiff  assisted  in  procuring  an  abortion, 
without  allegations  showing  the  assistance  criminal.5  Where 
the  charge  was  that  plaintiff  "  swore  falsely,"  without  re- 
ference to  any  judicial  or  other  proceeding  in  which  an 
oath  could  have  been  lawfully  administered,  a  plea  of 
justification  pointing  the  plaintiff  to  the  time,  place,  and 
occasion  of  his  false  swearing,  and  alleging  the  truth  of 

1  Biggs  v.  G't  East.  R.  R.,  18  Law  Times,  N.  S.  482. 

2  Kail  v.  Hill,  Pick.  325.  When  any  circumstance  is  stated  which  describes  or 
identifies  the  offense,  it  must  be  averred  for  the  purpose  of  showing  that  it  is  the 
same  offense.     (Sharpe  v.  Stephenson,  12  Ired.  348.) 

8  Snyder  v.  Andrews,  6  Barb.  43 ;  Steele  V.  Phillips,  10  Humph.  4G1. 
4  Shepard  v.  Merrill,  13  Johns.  475. 
6  Bissell  v.  Cornell,  24  "Wend.  354. 


'001 


PLEADING.  [Ch.  XIY. 


the  words  spoken,  was  held  to  be  good.1  Where  the 
charge  is  perjury,  the  plea  must  allege  not  only  that  the 
defendant  testified  to  what  was  untrue,  but  that  he  did  so 
knowingly,2  and  that  the  matter  testified  to  was  material.3 
If  the  charge  be  of  having  sworn  falsely  in  a  judicial  pro* 
ceeding,  without  the  necessary  averments  to  make  the 
slander  amount  to  an  imputation  of  perjury,  then  a  plea 
of  justification,  that  the  plaintiff  did  swear  falsely  in  the 
particular  proceeding,  would  be  sufficient.4  Where  the 
charge  is  that  the  plaintiff  perjured  himself  on  a  particular 
occasion,  the  justification  must  be  confined  to  that.5  Thus 
in  slander  for  charging  the  plaintiff  with  committing  per- 
jury in  making  a  certain  statement,  set  out  in  the  declara- 
tion, as  a  witness  in  a  certain  case,  the  defendant  pleaded 
that  the  plaintiff  did  commit  perjury  by  making  that 
statement,  and  that  on  the  same  trial  he  committed  per- 
jury by  another  statement  made  by  him  on  the  same  trial, 


1  Sanford  v.  Gaddis,  13  El.  329.  To  an  action  of  slander  for  charging  the  plaintiff 
■with  having  forged  a  certain  instrument  of  writing,  the  truth  "was  pleaded  in  justifica- 
tion. Held,  that  such  a  plea  could  not  be  objected  to  because  it  avers  the  forged  in- 
strument to  be  in  the  plaintiffs  possession  or  destroyed.  Held,  also,  that  in  a  plea 
■with  such  an  averment,  the  instrument  need  not  be  so  particularly  described  as  would 
be  otherwise  required.     (Kent  v.  David,  3  Blackf.  301.) 

4  Chandler  v.  Robison,  1  Ired.  480. 

3  McGough  v.  Rhodes,  T  Eng.  625  ;  Harris  v.  "Woody,  9  Mis.  113.  It  is  no  justi- 
fication to  an  insinuation  of  perjury  against  the  plaintiff  (who  had  swore  to  an  assault 
by  A.  B.  on  him),  that  it  did  appear  (which  was  the  suggestion  in  the  libel)  from  the 
testimony  of  every  person  in  the  room,  &c,  except  the  plaintiff,  that  no  violence  had 
been  used  by  A.  B.,  (fee. ;  for  non  constat  thereby  that  what  the  plaintiff  swore  was 
false.  Neither  is  it  sufficient  in  a  justification  to  such  a  libel,  where  the  extraneous 
matter  was  so  mingled  with  the  judicial  account  as  to  make  it  uncertain  whether  it 
could  be  separated,  to  justify  the  publication  by  general  reference  to  such  parts  of 
the  supposed  libel  as  purport  to  contain  an  account  of  the  trial,  (fee,  and  that  the 
said  parts  contain  a  just  and  faithful  account  of  the  trial,  (fee.  (Stiles  v.  Notes,  7  E. 
R.  493.) 

4  Sanford  v.  Gaddis,  13  111.  329.  "The  answer  should  set  forth  the  evidence,  and 
what  was  actually  sworn  to  by  the  plaintiff  at  the  time  alleged"  (3  Ch.  PL  1039; 
Yates'  Plead.  430;  Woodbeck  v.  Keller,  6  Cow.  122),  and  the  Code  of  New  York  has 
not  altered  the  rule  in  this  respect.  (Tilson  v.  Clark,  45  Barb.  180;  Wachter  v. 
Quenzer,  29  N  Y.  553.) 

'Palmer  v.  Haight,  2  Barb.  210. 


§  359.]  answer.  559 

and  not  set  ont  in  the  declaration.  On  demurrer  to  both 
pleas,  the  first  was  held  good,  and  the  second  bad.1  In  an 
action  for  slander  in  charging  the  plaintiff  with  perjury,  a 
plea  was  that  the  words  were  spoken  in  reference  to  the 
testimony  of  the  plaintiff  on  the  trial  of  a  cause,  and  after 
setting  out  the  parties,  the  nature  of  the  action,  and  the 
questions  litigated,  it  stated  the  evidence  given  on  such 
trial,  and  averred  that  the  words  were  spoken  in  reference 
to  certain  parts  of  the  testimony  {specifying  iheiri)  which 
were  not  material  to  the  issue,  and  that  the  defendant  was 
so  understood  by  the  hearers ;  it  was  held  that  the  words  in 
italic  were  irrelevant.2  A  plea  in  an  action  of  slander  for 
charging  the  plaintiff  with  committing  a  felony,  which  ad- 
mits the  speaking  of  the  words  charged,  but  avers  other 
facts  in  order  to  show  that  the  words  were  not  actionable, 
must  show  either  that  it  appeared  by  the  whole  of  defend- 
ant's statements,  in  the  same  conversation  and  company, 
that  no  felony  had  been  committed,  and  therefore  that 
there  was  no  charge  of  felony,  or  that  the  charge  was 
made  known  to  the  defendant  by  a  third  person,  named 
in  the  plea,  before  he  uttered  the  words.8 

§  359.  If  a  material  part  of  a  plea  of  justification  fails, 
the  plea  fails  altogether.4  Thus,  in  an  action  for  libel,  the 
declaration  set  out  the  whole  of  a  long  letter,  in  which 
the  defendant  imputed  to  the  plaintiff  improper  conduct 
in  various  transactions  which  had  taken  place  in  reference 
to  a  ditch  of  the  plaintiff's,  alleged  by  the  defendant  to  be 
a  nuisance.  The  defendant  pleaded  "  as  to  so  much  of  the 
libel  as  related  to,  and  charged  the  plaintiff  with,  the 

1  Starr  v.  Harrington,  1  Smith,  (Ind.)  350. 

s  Allen  v.  Crofoot,  1  Cow.  46. 

*  Parker  v.  McQueen,  8  B.  Monr.  10.  An  averment  that  the  plaintiff  did  falsely, 
fraudulently,  and  unlawfully  alter  a  note,  so  as  materially  to  change  the  terms  and 
conditions  thereof.  i3  a  good  plea  in  justification  of  a  charge  of  forgery.  (Kerr?). 
Force,  3  Cr.  C.  C.  8.) 

1  Cory  v.  Bond,  2  Fost.  &  F.  241. 


560  PLEADING.  [Ch.  XIV. 

keeping  of  the  nuisance,"  a  plea  which  attempted  to 
justify  every  sentence  in  the  letter.  The  jury  found  that 
the  plaintiff  kept  the  ditch  as  a  nuisance,  but  negatived 
the  improper  conduct  imputed  to  the  plaintiff  in  the 
letter.  Held  that,  upon  this  finding,  the  plaintiff  was  en- 
titled to  a  verdict.1  Where  the  charge  was  that  plaintiff 
had  acted  for  spite  and  lucre,  the  defendant  justified,  but 
his  justification  failed  as  to  lucre,  held  that  the  charge 
being  entire,  the  plaintiff  was  entitled  to  a  verdict,2  and 
where  a  part  only  of  a  divisible  charge  is  justified,  the 
defendant  is  liable  for  the  part  not  justified.3  So  where 
the  charge  was,  He  (plaintiff')  has  robbed  me  to  a  serious 
amount,  the  defendant  in  addition  to  the  general  issue,  as 
to  the  words  he  has  robbed  me,  pleaded  that  plaintiff  had 
robbed  him  (defendant)  of  a  loaf  of  the  value  of  three 
pence,  the  jury  found  the  words  as  laid,  and  that  the  plea 
was  true,  but  were  directed  to  assess  the  plaintiff's 
damages  for  the  words  not  justified,  namely,  "to  a  serious 
amount,"  and  the  court  in  banc  held  the  direction  proper.4 

§  360.  In  some  States,  by  statute,  a  notice  or  specifica- 
tion of  the  defense  is  substituted  for  a  plea  or  answer. 
Such  a  notice  must,  it  seems,  contain  all  the  material  al- 
legations of  a  plea  or  answer.5 

§  361.  In  New  York,  and  in  some  other  States,  by 
statute  the  defendant  may,  in  connection  with  a  general 

1  Biddulph  v.  Chamberlayne,  17  Q.  B.  351.  Where  in  an  action  for  a  libel,  in  re- 
ference to  an  advertisement  by  the  plaintiff  tending  to  injure  the  defendants,  his 
former  partners,  in  their  trade,  the  defendant  justified,  and  relied  on  the  construction 
of  such  advertisement,  as  set  out  in  the  introductory  part  of  the  declaration  ;  held, 
that  that  not  supporting  the  inferences  in  the  libel,  the  plaintiff  was  entitled  to  re- 
cover.    (Chubb  v.  Flannagan,  6  C.  &  P.  431.) 

2  Cory  v.  Bond,  2  Fost.  &  F.  241. 

3  Clarke  v.  Taylor,  3  Scott,  95. 

4  Bayley  &  Holroyd,  J.  J.,  in  the  Lancaster  C.  P. 

6  Van  Derveer  v.  Sutphin,  5  Ohio,  N.  S.  293;  Brickett  v.  Davis.  21  Pick.  404  ; 
Shepard  v.  Merrill,  13  Johns.  475;  Mitchell  v.  Borden,  8  "Wend.  570;  Bissell  v. 
Cornell,  24  Wend.  354. 


§  301.]  MITIGATING    CIRCUMSTANCES.  561 

denial,  and  with  or  without  a  defense  of  justification,  set 
up  in  his  answer  mitigating  circumstances  to  reduce  the 
amount  of  damages.1  But  it  would  seem  that  a  defeud- 
ant  cannot  set  up  mitigating  circumstances  alone,  without 
any  other  answer  constituting  a  defense,  because  an 
answer  merely  setting  up  mitigating  circumstances  would 
not  raise  an  issue.2  Mitigating  circumstances  are  such 
circumstances  as  the  well-established  rules  of  law  allow 
to  be  given  in  evidence  in  mitigation  of  damages,3  and 
what  those  circumstances  are  will  be  considered  under  the 
head  of  Evidence.  The  question  whether  the  facts  set 
up  are  or  are  not  such  as  should  be  permitted  to  be  given 
in  evidence  in  mitigation,  is  properly  to  be  decided  by 
the  judge  on  the  trial  of  the  issue  of  fact.4  And,  there- 
fore, although  a  plaintiff  may  move,  prior  to  the  trial,  to 
strike  out  as  irrelevant  or  redundant  allegations  of  facts 
which  the  defendant  avers  he  will  prove  on  the  trial  in 
mitigation,5  yet  where  there  is  any  doubt  as  to  whether 
or  not  the  facts  alleged  in  the  answer  would  be  received 
in  evidence  on  the  trial,  the  motion,  prior  to  the  trial, 
should .  be  denied.  "Where  a  defendant  seeks  to  mitigate 
damages  by  pleading  facts  and  circumstances  which  in- 
duced him,  at  the  time  of  making  the  charge,  to  believe 
it  true,  (1)  the  facts  and  circumstances  must  be  such  as 
would  reasonably  induce,  in  the  mind  of  a  person  pos- 
sessed of  ordinary  intelligence  and  knowledge,  a  belief  of 


1  Code  of  Pro.  §  165;  Bush  v.  Prosser,  11  N.  Y.  34 7 ;  Bisbey  v.  Shaw,  12  N.  Y. 
67;  TJolevin  v.  "Wilder,  34  How.  Pra.  R.  488;  7  Robertson,  319  ;  Van  Benschoten  v. 
Yapel,  13  How.  Pra.  R.  97  ;  Heaton  v.  "Wright,  10  Id.  79  ;  Ayres  v.  Covill,  IS  Barb.  260. 

8  Newman  v.  Otto,  4  Sandf.  669 ;  Maretzek  v.  Cauldwell,  19  Abb.  Pra.  R.  40;  but 
see  Van  Benschoten  v.  Yaple,  13  How.  Pra.  Rep.  97. 

3  Graham  v.  Jones,  1  Code  Rep.  N.  S.  181 ;  6  How.  Pra.  R.  15  ;  Blickcnstaff  v.  Perrin, 
27  Ind.  527.  Anything  tending  to  disprove  actual  malice,  although  it  majr  tend  to 
establish  the  truth,  is  admissible  in  mitigation.  (Bush  v.  Prosser,  11  N.  Y.  347; 
Bisbey  v,  Shaw,  12  Id.  67.) 

4  Newman  v.  Harrison,  1  Code  Rep.  N.  S.  184 ;  Fry  v.  Bennett,  5  Sandf.  54. 
*  Van  Benschoten  v.  Yaple,  13  How.  Pra.  R.  97. 


562  PLEADING.  [Ch.  XIV. 

tlie  trutlf  of  such  charge ;  (2)  it  must  also  appear  that 
the  defendant,  before  and  at  the  time  of  rnakino-  the 
charge,  knew  such  facts  and  circumstances,  and  (3)  that 
he  was,  by  reason  of  the  facts  and  circumstances  so  set 
forth,  induced  to  believe  in  the  truth  of  the  charge. 
Unless  it  contain  all  these  allegations,  it  may  be  stricken 
out  on  motion.  Upon  a  motion  to  strike  out,  as  redun- 
dant or  irrelevant,  matter  set  up  in  mitigation,  the  court 
is  to  see  whether  such  matter  can,  by  any  possibility,  be 
received  in  evidence ;  if  it  can,  it  should  not  be  stricken 
out.  It  should  not  be  stricken  out  if  the  court  has  the 
slightest  doubt  as  to  its  inadmissibility.1  It  is  supposed 
that,  in  New  York,  the  defendant  on  the  trial  can  give  in 
evidence  only  such  matter  of  mitigation  as  he  has  set  up 
in  his  answer,  and  that  if  the  answer  does  not  contain 
any  matter  of  mitigation,  no  evidence  in  mitigation  can 
be  admitted  on  the  trial.2  On  an  assessment  of  damages, 
where  there  is  no  answer,  matter  in  mitigation  may  be 
received.  Although  matter  in  mitigation  of  damages  is 
not  a  subject  of  demurrer,  yet  if  set  up  in  the  answer, 
without  its  being  stated  that  they  are  set  up  in  mitigation 
merely,  the  plaintiff  may  infer  they  are  set  up  in  bar,  and 
may  demur  to  them.3 

§  362.  As  in  other  actions,  the  defendant  may  demur 
to  the  complaint ;  but  Lord  Coke  said  it  was  "  an  excel- 
lent point  of  learning  in  actions  for  slander"  not  to 
demur,  but  to  take  advantage  of  the  declaration  not  dis- 
closing a  cause  of  action,  either  on  the  trial,  or  by  motion 
in  arrest  of  judgment.4     It  has  been  held  that,  though  a 

1  Dolevin  v.  Wilder,  34  How.  Pra.  Rep.  488 ;  Gorton  v.  Keeler,  51  Barb.  475. 

2  In  Indiana,  it  is  optional  with  the  defendant  whether  he  will  set  up  mitigating 
circumstances  in  his  answer  or  not.     See  O'Conner  v.  O'Conner,  2*7  Ind.  69. 

3  Newman  v.  Otto,  4  Sandf.  668 ;  Fry  v.  Bennett,  5  Id.  54 ;  Matthews  v.  Beach,  Id. 
256;  Meyer  v.  Schultz,  4  Id,  664  ;  Stanley  v.  Webb,  Id,  21. 

4  The  great  changes  which,  since  Lord  Coke's  day,  have  taken  place  in  the  forms 
and  mode  of  procedure,  have  deprived  this  rule  of  much  of  its  value.     If  the  words 


§  362.]  DEMURRER.  563 

count  in  slander  contain  some  words  which  are  actionable, 
and  others  which  are  not,  the  defendant  cannot  plead  as 
to  the  former,  and  demur  as  to  the  residue,  but  must 
either  plead  or  demur  to  the  whole  count.1  But  again  it 
has  been  held,  that  where  a  libel  contains  several  distinct 
charges,  the  defendant  may  plead  or  demur  to  particular 
parts  of  it ;  yet  where  several  statements  tend  to  one  con- 
clusion or  imputation,  it  is  not  permissible  to  select  and 
deal  separately  with  one,  either  by  plea  or  demurrer.2  A 
defendant  cannot  single  out  some  of  the  words  in  a 
declaration  and  demur  to  them.3  If  a  count  by  husband 
and  wife  contains  words  actionable  per  se,  as  well  as 
others  spoken  of  the  wife,  the  defendant  cannot  demur, 
but  may,  on  the  trial,  object  that  the  action  for  the  latter 
words  cannot  be  maintained  by  both.4  In  an  action  for 
libel,  where  the  answer  contained  (1)  a  denial  of  the 
publication,  (2)  a  justification,  the  plaintiff  demurring  to 
the  answer,  specifying  only  objections  to  the  matter  of 
justification,  judgment  was  given  for  the  plaintiff  on  the 
demurrer ;  held  that  the  denial  remained  on  the  record, 


laid  in  the  declaration  are  not  actionable,  the  defendant  must  demur,  or  move  in 
arrest  of  judgment.  (Dorsey  v.  Whipps,  8  Gill,  45*7.)  He  cannot  avail  himself  of 
the  defect  at  the  trial  (Blunt  v.  Zunja,  Anthon,  180;  Boyd  v.  Brent,  3  Brevard,  241) 
to  nonsuit  the  plaintiff.  (Lumby  v.  Allday,  1  Cr.  <fe  J.  301 ;  1  Tyrw.  21V.)  It  seems 
to  be  otherwise  in  New  York,  where,  on  the  trial,  the  defendant  may  insist  that  the 
complaint  does  not  disclose  a  cause  i»f  action.  It  must  be  remembered  that  in  New 
York  the  demurrer  is  general  only,  and  that  the  special  demurrer  has  been  superseded 
by  a  motion  to  make  definite  and  certain. 

1  Bronson,  J.,  Root  v.  Woodruff,  6  Hill,  420,  citing  as  to  libel,  Sterling  v.  Sher- 
wood, 20  Johns.  204 ;  Riggs  v.  Denniston,  3  Johns.  Cas.  198,  and  saying  the  same 
rule  had  been  applied  in  actions  for  slander,  though  not  reported ;  and  see  Taylor  v. 
Carr,  3  Up.  Can.  Q.  B.  Rep.  306.  It  is  conceded  that  the  rule  is  otherwise  in  England, 
and  Clarkson  v.  Lawson,  6  Bing.  587,  is  cited.  Held  that  a  defendant  may  demur  to 
a  part  of  the  words  laid  in  a  count  for  slander.  (Abrams  v.  Smith,  8  Blackf.  95  ; 
Wyant  v.  Smith,  5  Id.  294.) 

*  Eaton  v.  Johns,  1  Dowl.  Pra.  Cas.  N.  S.  602 ;  and  see  McGregor  v.  Gregory,  2 
Id.  769;  11  M.  &  W.  289. 

8  Taylor  v.  Carr,  3  Up.  Can.  Q.  B.  Rep.  306. 
4  Beach  v.  Ranney,  2  Hill,  309. 


564  COUNTER-CLAIM, 

and  raised  an  issue  of  fact.1  Upon  demurrer  to  the  com- 
plaint, if  any  of  the  words  be  actionable,  there  must  be 
judgment  for  the  plaintiff.2  A  demurrer  to  the  complaint 
does  not  admit  the  intent  attributed  by  the  innuendo.3 

§  362a.  There  can  be  no  counter-claim  in  an  action 
of  slander  or  libel.4  One  libel  cannot  be  set  off  against 
another,5  nor  can  damages  occasioned  by  a  libel  form  a 
counter-claim  in  an  action  for  an  assault.6 


1  Matthews  v.  Beach,  8N.  Y.  173 ;  but  see  Parrett  Nav.  Co.  v.  Stower,  8  Dowl. 
Pra.  Cas.  405. 

2  Edde  v.  Waters,  4  Cr.  C.  C.  170. 

3  Wheeler  v.  Hames,  1  Perr.  <fe  D.  55. 

4  Jellerman  v.  Dolna,  V  Abb.  Pra.  E.  395  note. 

6  Seely  v.  Cole,  Wright  (Ohio),  681.     In  the  Scotch  Reports  are  to  be    icurd 
numerous  instances  of  one  set  of  words  being  set  off  against  another. 
6  Macdougall  v.  Maguire,  35  Cal.  2*74. 


CHAPTER  XV. 

VARIANCE. AMENDMENT. 

Allegation  of  pleadings  and  proof  should  correspond^  Va- 
riance in  New  York — General  rules  as  to  variance — 
Immaterial  variance — Material  variance — Amendment. 

§  363.  The  general  rule  as  to  variance  is  that  the  alle- 
gations of  the  pleading  and  the  proof  must  correspond, 
otherwise  there  is  a  variance,  and  the  plaintiff  fails ;  \  but 
now  in  New  York  it  is  enacted  by  statute  that  "  no  vari- 
ance between  the  allegation  in  a  pleading  and  the  proof 
shall  be  deemed  material  unless  it  have  actually  misled 
the  adverse  party  to  his  prejudice,"  and  when  the  variance 
is  shown  to  be  material,  the  court  may  order  an  amend- 
ment.2 The  following  decisions  upon  variance  are  in  cases 
not  within  the  Code  of  New  York. 

§  364.  Ordinarily  it  is  sufficient  if  the  words  proved 
correspond  substantially  with  those  alleged.3  But  al- 
though any  mere  variation  of  the  form  of  expression  is  not 
material,  the  words  alleged  cannot  be  proved  by  showing 
that  the  defendant  published  the  same  meaning  in  differ- 


1  In  actions  of  slander  and  libel  the  language  charged  must  be  proved  as  laid. 
(Birch  v.  Benton,  26  Mis.  (5  Jones),  153;  Ilorton  v.  Reavis,  2  Murph.  380.)  A  vari- 
ance is  fatal.  (Stanfield  v.  Boyer,  6  Har.  <fe  J.  248 ;  Winter  v.  Donovan,  8  Gill,  370  ; 
Harris  v.  Lawrence,  1  Tyler,  156.)  It  is  not  sufficient  to  prove  the  substance  of  the 
charge  merely.     (Rex  v.  Berry,  4  T.  R.  217.) 

*  Code  of  Proc.  §  169.  As  to  amendment  of  variance  in  Indiana  (Proctor  v.  Owens, 
18  Ind.  21). 

8  Coghill  v.  Chandler,  33  Mis.  115  ;  Smith  v.  Hollister,  3  Shaw  (Verm.)  695  ;  Tay- 
lor v.  Moran,  4  Mete.  (Ky.)  127;   Williams  v.  Minor,  18  Conn.  464. 


566  PLEADING.  [CL  XV. 

ent  words,1  even  if  equivalent  and  of  similar  import.2  A 
count  for  slanderous  words  spoken  affirmatively  is  not 
supported  by  proof  that  they  were  spoken  by  way  of  in- 
terrogation.8 Proof  of  words  spoken  in  the  second  person 
will  not  support  counts  for  words  spoken  in  the  third  per- 
son, and  vice  versa}  Proof  of  a  positive  assertion  is  not 
admitted  under  an  allegation  of  a  hypothetical  assertion  ; 
an  allegation  that  the  words  were  "  he  swore  to  a  lie "  is 
not  supported  by  proof  that  the  words  were  "  he  swore  to 
a  lie  if  he  swore  as  Jones  said  he  did." 5 

§  365.  The  plaintiff  need  not  prove  all  the  words  laid, 


1  Smith  v.  Hollister,  3  Shaw  (Verm.)  695.  "Within  six  months  before  suit  brought, 
the  defendant  said  concerning  the  words  alleged  to  be  actionable,  but  which  were 
barred  by  the  statute,  "  I  never  denied  what  I  have  said,  and  I  will  stand  up  to  it." 
Held,  that  this  was  not  a  repetition  of  what  he  had  previously  said,  and  that  an  action 
could  not  be  sustained  thereon.     (Fox  v.  Wilson,  3  Jones  Law  (N.  Car.)  485. 

2Wilbornw.  Odell,  29  111.  456;  Taylor  v.  Moran,  4  Mete.  (Ky.)  127;  Norton  v. 
Gordon,  16  111.  38.  It  is  not  sufficient  to  prove  words  equivalent  to  those  alleged. 
(Moore  v.  Bond,  4  Blackf.  458 ;  Slocum  v.  Kuykendall,  1  Scam.  187  ;  Olmstead  v. 
Miller,  1  Wend.  506 ;  Watson  v.  Musie,  2  Mis.  29 ;  Armitage  v.  Dunster,  4  Doug. 
291 ;  McConnell  v.  McVenna,  10  Ir.  L.  R.  511 ;  Campagnon  v.  Martin,  2  W.  Black, 
790.)  Words  to  the  same  effect  are  not  the  same  words.  (Fox  v.  Vanderbeck,  5 
Cow.  513.) 

3  Barnes  v.  Holloway,  8  T.R.  150;  Sanford  v.  Gaddis,  15  HI.  228;  King  v.  Whit- 
ley, 7  Jones  Law  (N.  Car.)  529.  If  in  an  action  of  slander  the  words  be  proved  to  be 
spoken  affirmatively  as  they  are  laid,  the  charge  is  supported,  though  it  appear  that 
they  were  spoken  in  answer  to  a  question  put  by  a  third  person.     (Jones  v.  Chapman, 

5  Blackf.  88.) 

4  Cock  v.  Weatherby,  5  Smedes  &  Marsh.  333 ;  Miller  v.  Miller,  8  Johns.  74 ; 
Stannard  v.  Harper,  5  M.  <fc  Ry.  295 ;  M'Connell  v.  McCoy,  7  S.  <fc  R.  223 ;  Culbert- 
son  v.  Stanley,  6  Blackf.  67;  Williams  v.  Harrison,  3  Mis.  411;  Wolf  v.  Rodifer,  Har. 

6  J.  409  ;  Avarillo  v.  Rogers,  Bull.  N.  P.  5  ;  Rex  v.  Berry,  4  T.  R.  217 ;  Phillips  v. 
Odell,  5  Up.  Can.  Q.  B.  Rep.  O.  S.  483 ;  Sanford  v.  Gaddis,  15  HI.  228 ;  Rutherford 
v.  Moore,  1  Cr.  C.  C.  388  ;  Birch  v.  Simms,  id.  550.  Evidence  of  the  words,  "  You  are 
a  broken  down  justice,"  does  not  support  an  indictment  for  speaking  of  the  magis- 
trate the  words,  "  He  is  a  broken  down  justice."  (4  T.  R.  217;  but  see  Cro.  Eliz. 
503.)  Words  proved  to  have  been  spoken  in  the  second  person,  sustain  a  count  for 
slander  in  which  the  words  are  in  the  third  person.  (Daily  v.  Gaines,  1  Dana,  529  ; 
Huffman  v.  Shumate,  4  Bibb,  515.) 

6  Evarts  v.  Smith,  19  Mich.  55,  §  369,  post. 


§  365.]  VARIANCE.  567 

but  lie  must  prove  enough  of  them  to  sustain  the  action.1 
It  is  sufficient  if  the  gravamen  of  the  charge  as  laid  is 
proved,2  and  unless  the  additional  words  qualify  the 
meaning  of  those  proved  so  as  to  render  the  words  proved 
not  actionable,  the  proof  is  sufficient.3  It  is  necessary  for 
the  plaintiff  to  prove  some  of  the  words  precisely  as 
charged,  but  not  all  of  them,  if  those  proved  are  in  them- 
selves slanderous ;  but  he  will  not  be  permitted  to  prove 
the  substance  of  them  in  lieu  of  the  precise  words.4  Where 
the  whole  of  the  words  laid  in  any  one  count  constitute 
the  slanderous  charge,  the  whole  must  be  proved.  But, 
where  there  are  distinct  slanderous  allegations  in  any 
count,  proof  of  any  of  them  is  sufficient.5  The  plaintiff 
may  prove  more  words  than  are  set  forth  in  the  complaint, 
provided  the  additional  words  do  not  change  the  meaning 


1  Fox  v.  Vanderbeck,  5  Cow.  513  ;  Purple  v.  Horton,  13  Wend.  9;  Nestle  v.  Van 
Slyck,  2  Hill,  282 ;  Skinner  v.  Grant,  12  Verm.  456 ;  Scott  v.  McKinnish,  15  Ala.  662  ; 
Hancock  v.  Stephens,  11  Humph.  507;  Isley  v.  Lovejoy,  8  Blackf.  462;  Sanford  v. 
Gaddis,  15  111.  228  ;  Whiting  v.  Smith,  13  Pick.  364;  Loomis  v.  Swick,  3  Wend.  205; 
Wheeler  v.  Robb,  1  Blackf.  330;  Chandler  v.  Holloway,  4  Port.  17  ;  Berry  v.  Dryden, 
7  Mis.  324;  Coghill  v.  Chandler,  33  Mis.  115;  Geary  v.  Connoss,  Skin.  333. 

2  Hersh  v.  Ringwalt,  3  Teates,  508  ;  Wilson  v.  Natrous,  5  Yerg.  211 ;  Cheadle  v. 
Buell,  6  Ham.  67  ;  Pursell  v.  Archer,  Peck,  317 ;  Miller  v.  Miller,  8  Johns.  74 ;  Cooper 
v.  Marlow,  3  Mis.  188;  Barr  v.  Gaines,  3  Dana,  258;  McCliutock  v.  Crick,  4  Iowa, 
453;  Baldwins.  Soule,  6  Gray,  321;  Scott  v.  McKinnish,  15  Ala.  662;  Bassett  *>. 
Spofford,  11  N.  Ilamp.  127;  Merrill  v.  Peaslee,  17  N.  Hamp.  540. 

3  Sanford  v.  Gaddis,  15  I1L  228;  Merrill  v.  Pei:slee,  17  N.  Hamp.  540;  Smart  v. 
Blanchard,  42  N.  Hamp.  137.  The  plaintiff  need  not  prove  all  the  words  set  forth  in 
the  declaration,  provided  he  proves  enough  to  sustain  his  cause  of  action,  and  the 
words  proved  do  not  differ  in  sense  from  those  alleged.  (Nichols  v.  Hayes,  13  Conn 
155  ;  Nestle  v.  Van  Slyck,  2  Hill,  282  ;  McKee  v.  Ingalls,  4  Scam.  30;  Scott  v.  Ren- 
forth,  Wright,  55.) 

4  Easley  v.  Moss,  9  Ala.  266 ;  Morgan  v.  Livingston,  2  Rich.  573 ;  Creelman  v. 
Marks,  7  Blackf.  281;  Patterson  v.  Edwards,  2  Gilman,  720.  Although  the  libel  read 
in  evidence  contained  matter  in  addition  to  that  set  out  in  the  declaration,  there  is  no 
variance  if  the  additional  part  do  not  alter  the  sense  of  that  which  is  set  out. 
(M'Coombs  »>.  Tuttle,  5  Blackf.  431;  Cooper  v.  Marlow,  3  Mis.  188;  Rutherford  v. 
Evans,  6  Bing.  451 ;  4  Car.  &  P.  74.)  Thus,  in  Tabart  v.  Tipper,  1  Camp.  850,  the 
rhymes  (see  ante,  note  5,  p. 446)  were  set  out  in  the  declaration  without  the  line  in  Latin 
which  followed  them ;  it  was  held  the  omission  was  immaterial. 

6  Flower  v.  Pedley,  2  Esp.  491. 


568  PLEADING.  [Cll.  XV. 

of  those  set  forth,1  and  words  spoken  at  different  times 
may  be  given  in  evidence  on  one  count.2 

§  366.  An  action  for  slanderous  words  imputing  to  the 
plaintiff  misconduct  as  a  constable,  is  not  sustained  by 
proving  words  imputing  misconduct  to  him,  as  an  agent 
of  the  executive  of  one  State,  for  the  arrest,  in  another 
State,  of  a  fugitive  from  justice.3  Where  the  words  were 
alleged  to  have  been  spoken  of  and  concerning  the  plain- 
tiff as  treasurer  and  collector  of  certain  tolls,  and  the  in- 
nuendo corresponding  thereto,  and  the  proof  was  only  of 
his  being  treasurer,  and  he  failed  in  making  out  his  ap- 
pointment to  be  collector;  held,  that  for  want  of  such 
proof  he  was  properly  nonsuited.4  For  words  spoken  of  a 
physician,  alleging  that  he  was  not  entitled  to  practice  as 
such  ;  held,  first  that  the  plaintiff  was  bound  to  prove  not 
only  that  he  practised  as  a  physician,  but  that  he  practised 
lawfully?  In  an  action  for  these  words  spoken  by  de- 
fendant of  the  plaintiff  in  his  profession  of  a  physician : 
"  Dr.  S.  has  upset  all  we  have  done,  and  die  he  (the 
patient)  must."  It  was  proved  that  the  plaintiff  had 
practised  several  years  as  a  physician,  and  having  been 
called  in  during  the  absence  of  a  physician  who  with  the 
defendant  attended  the  patient,  the  defendant,  as  apothe- 
cary, made  up  the  medicines  prescribed  by  the  plaintiff 


1  Wilborn  v.  Odell,  29  HI.  456.  In  Bourke  v.  Warren,  2  C.  &  P.  307,  a  letter  was 
set  out  as  inducement  alleged  to  contain  "the  words  and  matters  following;"  when 
the  letter  was  read  it  was  found  to  contain  all  that  was  stated  in  the  declaration  and 
something  more,  held,  not  a  material  variance — of  course  the  something  more  did 
not  qualify  what  went  before ;  and  see  Morrow  v.  McGaven,  1  Ir.  L.  R.  579.  In 
Crotty  v.  Morrissey,  40  111.  477,  held  no  variance  between  "  he  stole  $200  from  me" 
and  "  he  stole  $200  from  me,  when  I  was  drunk,"  but  that  there  was  a  variance  be- 
tween "  he  stole  part  of  the  money  he  collected  in  the  Catholic  church"  and  "he 
stole  part  of  the  money  he  collected  in  the  Catholic  church  in  Seneca." 

*  Churlter  v.  Barrett,  Peake,  32. 
3  Kinney  v.  Nash,  3  N.  Y.  177. 

*  Sellers  v.  Killen,  4  B.  &  Cr.  655 ;  7  D.  &  Ry.  121. 

6  Collins  v.  Carnegie,  3  Nev.  &  M.  703 ;  1  Ad.  <fc  El.  695. 


§   367.]  VARIANCE.  569 

for  the  patient  in  question.  Queers,  whether,  on  this 
declaration,  it  was  necessary  for  the  plaintiff  to  produce  a 
diploma,  or  other  direct  evidence  that  he  had  taken  a  de- 
gree in  physic,  in  order  to  maintain  the  action.1  Where 
the  declaration  alleged  the  plaintiff  to  be  an  attorney,  and 
that  the  words  were  spoken  of  him  in  his  professional 
character,  the  words  being  actionable  without  any  refer- 
ence to  such  character  ;  held,  that  mere  proof  of  his  having 
been  admitted,  without  showing  that  he  had  practised  or 
had  taken  out  his  certificate,  was  not  a  fatal  variance.2 

§  367.  The  following  have  been  held  to  be  immaterial 
variances :  the  date  of  publication ; 3  a  difference  in  the 
tense  of  the  words,  as  had  for  has;4  the  transposition  of 
the  names  of  the  parties  to  the  suit,  as  a  witness  in  which 
the  plaintiff  was  charged  with  having  sworn  falsely ; 5  al- 
leging that  the  offense  was  committed  on  Saturday  in- 
stead of  Sunday ; 6  a  discrepancy  in  the  title  of  a  paper ; 7 
where  it  was  alleged  that  the  publication  was  in  the 
presence  of  B.,  held  not  necessary  to  prove  such  alle- 
gation.8    On  an  allegation  that  the  defendant   charged 

1  Smith  v.  Taylor,  1  N.  R.  196.  In  an  action  by  an  apothecary,  what  is  sufficient 
proof  of  his  qualifications  as  such.  (Wogan  v.  Somerville,  1  Moore,  102  ;  1  Taunt 
401.) 

*  Lewis  v.  "Walter,  3  B.  <fe  Cr.  138  ;  4  D.  <fe  R.  810. 

s  Thrall  v.  Smiley,  9  Cal.  529;  Gates  v.  Bowker,  18  Verm.  (3  Washb.)  23;  Com- 
monwealth v.  Varney,  10  Cush.  402 ;  Potter  v.  Thompson,  22  Barb.  89. 

4  Wilborn  v.  Odell,  29  111.  456. 

6  Teague  v.  Williams,  7  Ala.  844.  In  an  action  of  slander,  the  plaintiff  alleged 
that  the  slanderous  words  were  spoken  relative  to  testimony  of  the  plaintiff  in  a  suit 
in  which  S.  was  plaintiff  and  H.  defendant.  Held,  that  evidence  aliunde  was  admis- 
sible to  show  that  the  record  of  an  action  by  S.  and  W.  against  II.  was  the  action 
referred  to  in  the  declaration,  and  that  there  was  no  variance.  (Ilibler  v.  Servoss, 
G  Mis.  24.) 

8  Sharpe  v.  Stephenson,  12  Ired.  348. 

7  The  State  v.  Jeandell,  5  liar  ring.  475. 

8  Goodrich  v.  Warner,  21  Conn.  432.  But  where  the  allegation  was  a  speaking 
in  the  hearing  of  "  divers  citizens,"  and  the  proof  was  of  a  speaking  in  the  hearing  of 
one  person,  and  he  not  a  citizen,  it  was  held  a  fatal  variance.  (Chapin  v.  White,  102 
Mass.  139.) 

37 


570  variance.       .  [Ch.  XV. 

the  plaintiff  with  perjury  in  a  suit  of  A.  and  B.  v.  C. 
and  D.,  the  variance  is  not  fatal  if  it  be  shown  that  the 
charge  was  made  in  reference  to  the  case  of  a  cross-bill,  by 
one  of  the  defendants  in  such  case,  against  the  complain- 
ant and  co-defendants.1  And  where  the  declaration  on  a 
libel  stated  that  certain  prosecutions  had  been  preferred 
against  M.,  and  that,  "  in  furtherance  of  such  proceedings," 
certain  sums  of  the  parish  funds  had  been  appropriated 
to  discharge  the  expenses;  but  the  libel  charged  the 
money  to  have  been  so  applied  after  the  proceedings  had 
terminated :  held,  that  it  being  immaterial  to  the  defama- 
tory character  of  the  libel  when  the  money  was  so  applied, 
the  variance  was  immaterial.2  So  a  slight  variance  in  the 
names  of  the  defendants  in  the  indictment,  as  set  forth  in 
the  declaration  and  contained  in  the  record,  may  be  cured 
by  parol  proof  of  the  identity  of  the  persons.8  Where  the 
words  charged  in  one  count  were  "  He  is  a  thief,"  and  in 
another,  "  He  is  a  thief,  and  stole  the  hay  and  hay-seed 
from  D.'s  barn,"  and  the  proof  was  that  the  defendant 
said,  at  one  time,  that  he  was  "  a  thief,  and  stole  the  hay- 
seed out  of  the  barn,"  and  at  another  that  he  had  "  stolen 
hay  and  hay-seed  that  had  belonged  to  H.,"  it  was  held 
that  the  words  charged  were  sufficiently  proved.4 

§  368.  The  following  are  additional  instances  of  imma- 
terial variance : 


1  Wiley  v.  Campbell,  5  Monr.  560.  A  charge  of  false  swearing,  in  a  proceeding 
between  A.  and  B.,  held  sustained  by  proof  of  a  proceeding  between  A.  and  B.  and 
wife.     (Dowd  v.  Winters,  20  Mis.  (5  Bennett),  361.) 

8  May  v.  Brown,  3  B.  &  Cr.  113 ;  4  D.  &  R.  670.  It  is  a  general  rule  that  the 
variance  between  the  allegation  and  the  proof  will  defeat  a  party,  unless  it  be  in 
respect  of  matter  which,  if  pleaded,  would  be  material.  {Id.)  Where  the  words  are 
actionable  without  the  inducement,  the  insertion  of  what  is  not  material  and  not 
proved  does  not  occasion  a  variance  of  which  advantage  can  be  taken.  (Cox  v.  Thom- 
ason,  2  Cr.  &  J.  361 ;  2  Tyrw.  411.) 

s  Hamilton  v.  Langley,  1  M'Mullan,  498. 

4  Williams  v.  Miner,  18  Conn.  464. 


368.] 


VARIANCE. 


571 


US. 


ALLEGATION. 

He  stole  hogs. 

The  girl  that  hired  with 

i. 

A.  committed  forgery. 


"We  supposed  that  they 
had  become  aware  of  the 
fact. 

He  stole  my  staves  and 
nails. 

She  has  had  a  bastard 
child. 

A.  has  had  a  baby. 


He  is  a  strong  thief. 

He  has  been  working  for 
me  some  time,  and  has  been 
robbing  me  all  the  while. 


PKOOF. 

He  stole  a  hog.1 

The  girl  that  lived  with 
us.2 

A.  and  B.  committed  forg- 
ery.3 

We  supposed  that  they 
had  by  this  time  become 
aware  of  the  fact.4 

He  is  a  damned  rogue, 
for  he  stole  my  staves  and 
nails,  and  I  can  prove  it.5 

If  I  have  not  been  misin- 
formed, she  had  a  bastard 
child.6 

We  hear  bad  reports 
about  some  of  your  girls; 
A.  has  had  a  baby.7 

He  is  a  thief.8 

He  has  worked  for  me 
some  time,  and  has  been 
continually  robbing  me.9 


1  Barr  v.  Gains,  3  Dana,  258. 
s  Robinett  v.  Ruby,  13  Md.  94. 

3  Nichols  v.  Hayes,  13  Conn.  155.  But  words  spoken  of  a  husband  or  of  a  wife 
will  not  support  an  allegation  of  words  spoken  of  both  of  them.  (Davis  v.  Sherron, 
1  Cr.  C.  C.  287.) 

4  Smiley  v.  McDougal,  10  Up.  Can.  Q.  B.  Rep.  113. 
4  Pasley  v.  Kemp,  22  Mis.  (1  Jones),  409. 

8  Treat  v.  Browning,  4  Conn.  408. 

7  Robbins  v.  Fletcher,  101  Mass.  115. 

8  Burgis's  Case,  Dyer,  75. 

•  Doncaster  v.  Hewson,  2  Man.  <fe  Ry.  176. 


572 


VARIANCE. 


[Ch.  XV. 


ALLEGATION. 

You  are  perjured. 

Mr.  K.'s  wife  is  a  whore. 

You  stole  one  of  my 
sheep. 

Kiot. 

Poppenheim  is  a  very 
bad  man ;  he  is  a  calf-thief, 
and  the  records  of  the  court 
will  prove  it. 


Your  (plaintiff's)  house 
is  a  bawdy  house,  and  no 
respectable  person  will  live 
in  it. 

Ware  Hawk,  you  must 
take  care  of  yourself  there, 
mind  what  you  are  about. 


PROOF. 

Are  you  not  afraid,  as 
you  have  perjured  your- 
self?1 

She  (Mr.  K.'s  wife)  is  a 
whorish  bitch.2 

You  stole  my  sheep  and 
killed  it.8 

Riot  and  assault.4 

Poppenheim  is  a  very 
bad  man ;  he  is  a  calf- thief ; 
he  has  been  indicted  for 
calf-stealing,  and  the  rec- 
ords of  the  court  will  prove 
it.5 

You  (plaintiff's  wife)  are 
a  nuisance  to  live  beside  of. 
You  are  a  bawd,  and  your 
house  no  better  than  a 
bawdy  house.6 

Ware  Hawk,  you  must 
take  care  of  yourself  there.7 


§  369.  It  was  held  a  material  variance  where  the  de- 
claration alleged  that  the  defendant  charged  the  plaintiff 


1  Commons  v.  Walters,  1  Port.  377. 

a  Scott  v.  McKinnish,  15  Ala.  662. 

*  Robinson  v.  Wallis,  2  Stark.  Rep.  194;  the  word  it  showing  that  only  one  sheep 
was  meant. 

4  Hamilton  v.  Langley,  1  M'Mullan,  498. 

6  Poppenheim  v.  Wilkes,  1  Strob.  275. 

6  Huckle  v.  Reynolds,  7  C.  B.  N.  S.  114. 

7  Orpwood  v.  Barkes,  4  Bing.  261 ;  s.  c.  Orpwood  v.  Parkes,  12  Moore,  492. 


§  369.]  VARIANCE.  573 

with  a  crime,  and  the  proof  disclosed  merely  that  defend- 
ant said  he  supposed  the  plaintiff  to  be  guilty  of  such 
crime.1  Where  the  declaration  charged  the  defendant 
with  speaking  slanderous  words,  and  the  proof  was  that 
he  procured  another  to  speak  them ; 2  where  the  declara- 
tion charged  the  defendant  with  speaking  defamatory 
words,  and  the  proof  was  that  defendant  signed  a  written 
complaint  charging  the  plaintiff  with  larceny ; 3  where  the 
declaration  charged  the  defendant  with  saying  that  plain- 
tiff, a  single  woman,  had  had  a  child,  and  the  proof  was 
that  defendant  said,  in  his  opinion  plaintiff  was  pregnant 
with  child.4  An  allegation  of  slander  as  to  the  cleanliness 
of  the  person  of  plaintiff  (a  cook),  as  of  the  defendant's 
actual  knowledge,  held,  not  supported  by  proof  of  words 
as  to  the  defendant's  belief  or  understanding  only.5 
An  allegation  that  words  were  spoken  concerning  three 
plaintiffs  (partners)  in  their  joint  trade,  is  not  supported 
by  proof  that  the  words  were  addressed  to  one  of  the 
plaintiffs  personally.6  Where  the  words  set  forth,  in  their 
ordinary  sense,  import  a  charge  of  crime,  if  they  are  proved 
to  have  been  so  spoken  in  connection  with  other  words  as 
to  rebut  the  idea  of  criminality,  there  is  a  fatal  variance ; 7 
and  where  an  innuendo  gives  a  specific  meaning  to  the 

1  Dickey  v.  Andros,  32  Verm.  (3  Shaw),  55.  Where,  in  case  for  a  malicious  prose- 
cution, the  declaration  alleged  that  an  express  charge  of  felony  was  made  against 
plaintiff,  hut  it  appeared  that  the  defendant  had  only  deposed  to  a  suspicion  that  he 
had  committed  it,  held  no  variance,  it  being  the  only  meaning  which  could  be  impu- 
ted to  the  accusation.     (Davis  v.  Noake,  6  M.  &  S.  29.) 

*  Watts  v.  Greenlee,  1  Dev.  210. 

s  Hill  v.  Miles,  9  N.  Hamp.  9. 

4  Payson  v.  Macomber,  3  Allen  (Mass.),  69.  A  count  in  slander,  alleging  that  the 
defendant  charged  upon  the  plaintiff  an  act  of  fornication,  witnessed  by  a  particular 
person,  is  not  sustained  by  proof  of  words  charging  an  act  of  fornication  witnessed 
by  another  pejson,  or  by  proof  of  words  implying  a  charge  of  habitual  fornication 
and  lewdness  with  the  person  named  in  the  declaration.     {Id.) 

»  Cook  v.  Stokes,  1  M.  &  Rob.  237. 

8  Solomons  v.  Medex,  1  Stark.  Cas.  191 ;  and  see  Davis  v.  Sherron,  1  Cr.  C.  C. 
281 

7  Edgerly  v.  Swain,  32  N.  Hamp.  478. 


574  variance.  [Ch.  XV. 

language  published,  that  meaning  must  be  proved,  or  there 
will  be  a  variance.1  Where  the  declaration  in  an  action 
of  slander  alleges  that  the  words  spoken  were  in  reference 
to  an  oath  taken  by  the  plaintiff  before  the  register  and 
receiver  of  a  land  office,  touching  the  entry  of  land,  proof 
of  an  oath  taken  before  a  notary  public  concerning  the 
same  subject-matter,  does  not  support  the  allegation;2  and 
where  the  declaration  for  maliciously  charging  the  plain- 
tiff with  felony  stated  that  the  defendant  went  before  R. 
C.  Baron  Waterpark,  of  Waterfork,  in  the  county  of,  <fcc, 
and  the  proof  was  that  his  title  was  Baron  Waterpark,  of 
Waterpark,  &c. ;  held  a  fatal  variance.8  Where  the  libel 
given  in  evidence  contained  two  references  (showing  it  to 
be  the  language  of  a  third  person  respecting  the  plaintiff), 
and  which  were  omitted  in  the  libel  set  forth  in  the  decla- 
ration; held,  that  the  meaning  of  the  paragraphs  being 
different,  the  variance  was  fatal.4  An  action  upon  a  libel 
charging  in  one  count  that  the  defendant  published  it  as 
purporting  to  be  a  letter  from  A.  to  B.,  and  in  another 
charging  generally  that  the  defendant  published  the  libel- 
lous matter;  held  not  to.be  sustained  by  proof  of  a  pub- 
lication wherein  the  defendant  stated  that  in  a  debate  in 
the  Irish  House  of  Commons  several  years  before,  the 
attorney-general  of  Ireland  had  read  such  a  letter,  and 
then  stating  the  libellous  matter  as  said  by  him  in  com- 
menting upon  that  letter ;  for  it  was  said  the  characters  of 
the  several   libels  were  essentially  different,  though  the 


1  Williams  v.  Stott,  1  Cr.  &  M.  675  ;  3  Tyrw.  668 ;  ante,  §  338.  In  a  declaration 
for  slander  the  words  charged  to  have  been  published  were,  "  You  have  murdered 
your  little  girl;"  innuendo  the  infant  daughter  of  plaintiff.  On  the  trial  it  appeared 
that  the  child  was  illegitimate,  but  that  the  plaintiff  was  in  fact  the  father.  It  was 
objected  that  the  innuendo  implied  a  child  born  in  wedlock,  and  that  there  was  a 
variance.  The  objection  was  sustained,  and  the  plaintiff  was  non-suited.  (Foote  v. 
Rowley,  2  Law  Reporter,  138,  in  appendix,  post.) 

2  Phillips  v.  Beene,  16  Ala.  720. 

3  Walters  v.  Mace,  2  B.  &  A.  756 ;  1  Chit.  507. 

4  Tabart  v.  Tipper,  1  Camp.  353. 


§  370.]  variance.  575 

slander  imputed  might  be  the  same.1  Where  the  libel 
given  in  evidence  was  contained  in  a  book  published  by 
the  defendant  respecting  William  Cobbett,  entitled  "The 
Book  of  Wonders,"  and  was  as  follows:  "Many  well 
intentioned  persons  have  expressed  their  surprise  that 
the  erilightener  should  have  been  willing  to  accept  of  a 
seat  in  corruptions'  den  purchased  with  the  bank  notes  of 
a  man  whose  incapability  and  baseness  he  had  so  power- 
fully exposed.  To  convince  such  persons  that  such  line  of 
conduct  was  strictly  patriotic,  we  have  only  to  assure  them 
that  in  so  doing,  he  was  walking  in  the  footsteps  of  that 
venerable  veteran  whose  creed  is  the  criterion  of  excellence 
(see  No.  195),  and  who,  in  an  article  of  that  creed,  has 
laid  it  down  as  a  maxim  that  we  must,  in  fighting  the 
enemy,  not  reject  the  use  of  even  despicable  and  detestible 
men.  Cobbett,  v.  32,  p.  82."  The  libel  as  set  forth  in 
the  declaration  omitted  the  words  and  figures,  "  see  No. 
195,"  and  "  Cobbett,  v.  32,  p.  82."  It  was  held  a  fatal 
variance ;  for  upon  reading  the  declaration  the  libel  would 
be  understood  to  mean,  that  the  defendant  had  himself 
made  the  assertions  respecting  the  plaintiff,  but  from  the 
libel  itself  it  appears  that  the  paragraph  was  written  with 
intent  to  expose  the  conduct,  not  of  the  plaintiff,  but  of 
another  person.2 

§  370.  An  indictment  for  a  libel  charged  that  the  de- 
fendant set  up,  in  public,  a  board  on  which  a  painting  or 
picture  of  a  human  head,  with  a  nail  driven  through  the 
ear,  and  a  pair  of  shears  hung  on  a  nail,  and  the  proof  was 
that  a  human  head,  showing  a  side  face,  with  an  ear,  a 
nail  driven  through  the  ear,  and  a  pair  of  shears  hung  on 


1  Bell  v.  Byrne.  13  East,  554. 

*  Cartwright  v.  Wright,  5  B.  &  Aid.  CI 5.  Where  the  words  alleged  were,  "My 
sarcastic  friend  by  leaving  out,"  <fec,  and  the  proof  was,  "  My  sarcastic  friend  Moroi 
by  leaving  out,"  <fcc.,  held  a  material  variance,  (Tabart  v.  Tipper,  1  Camp.  350); 
leaving  out  the  words  "of"  and  "  which,"  although  fchey  did  not  materially  alter  the 
sense,  held  a  variance.     (Cooke  v.  Smith,  McClcl.  250.) 


576  variance.  [Ch.  XV. 

tlie  nail,  was  inscribed  or  cut  in  the  board  by  means  of 
some  instrument,  bat  was  not  painted.  Held,  that  there 
was  a  fatal  variance  between  the  allegation  and  the  proof, 
and  that  the  defendant  must  be  acquitted.1  In  an  action 
of  slander,  one  of  the  counts  charged  the  defendant  with 
having  made  a  voluntary  affidavit,  and  caused  certain  false 
statements  to  be  written  therein,  to  wit :  "  that  there  was 
a  certain  quantity  of  American  soap,  which  to  his  certain 
knowledge  was  sold  at  Curac.oa  (by  the  plaintiff)  at  six 
dollars,  current  money."  The  affidavit,  as  offered  in  evi- 
dence by  the  plaintiff,  stated  the  same  words,  except  that 
the  words  "  per  box "  were  added  after  the  words  "  six 
dollars."  Held,  that  the  variance  was  fatal.2  The  aver- 
ment was  that  A.,  before  a  magistrate,  maliciously  charged 
B.  with  felony ;  the  information  contained  a  mere  charge 
of  tortious  conversion,  upon  which  a  warrant  for  felony 
was  improperly  founded.  The  variance  was  held  fatal.3 
If  a  declaration  count  upon  a  charge  of  perjury  upon  a 
particular  occasion,  proof  of  a  general  charge  of  perjury 
is  inadmissible  to  sustain  it.4 

§  371.  The  following  are  additional  instances  of  mate- 
rial variance : 

ALLEGATION.  PROOF. 

Whore.  Strumpet.5 

1  The  State  v.  Powers,  12  Ired.  5. 

2  Wilson  v.  Mitchell,  3  Har.  &  J.  91. 

3  Tempest  v.  Chambers,  1  Stark.  Rep.  6*7.  In  slander  the  allegation  was,  He  bnrnt 
Knox's  barn.  The  proof  was  that  defendant  added,  Because  one  of  the  girls  would 
not  marry  him.  It  was  doubted  if  a  variance.  Where  the  inducement  was  of  a  con- 
versation of  Mr.  Knox's  barn  which  had  been  burnt,  and  that  defendant  said  of  plain- 
tiff and  of  said  barn,  He  burnt  Knox's  barn  ;  proof  that  defendant  spoke  the  words, 
He  burnt  Knox's  barn,  without  proof  of  the  colloquium  respecting  the  burning  of  Mr. 
Knox's  barn,  was  held  insufficient.     (Manly  v.  Cory,  3  U.  C.  Q.  B.  R.  380.) 

4  Emery  v.  Miller,  1  Denio,  208. 

6  "Williams  v.  Bryant,  4  Ala.  44  ;  cwitra,  see  Cook  v.  Winfield,  1  Stra.  555  ;  ante, 
note  2,  p.  233.  A  charge  of  being  "a  whore  and  a  common  prostitute"  is  not  sup- 
ported by  proof  of  words  amounting  to  a  general  charge  of  unchastity.  (Doherty  v. 
Brown,  10  Gray  (Mass.)  250.) 


371.] 


VARIANCE. 


577 


ALLEGATION. 

That  the  plaintiff,  who 
was  postmaster  at  F.,  em- 
bezzled certain  papers. 


L.  is  pregnant  and  gone 
with  child  seven  months. 

Dr.  F.  is  not  a  physician, 
but  a  twopenny  bleeder. 


He  burnt  my  barn,  innu- 
endo feloniously  burnt. 


He  stole  wheat  last  win- 
ter. 


That  persons  who  would 
otherwise  have  retained  and 
employed  the  plaintiff,  whol- 
ly declined  and  refused  so 
to  do. 


PROOF. 

Defendant  had  no  doubt 
the  papers  were  embezzled 
at  F.,  or  he  thought  the 
papers  were  embezzled  at 
F.1 

Have  you  heard  anything 
about  L.'s  being  pregnant 
by  Dr.  P.2 

If  Dr.  F.  is  a  twopenny 
physician,  I  am  none.  I  am 
a  regular  graduate  and  no 
quack.3 

There  is  the  man  that 
burnt  my  barn ;  if  he  was 
not  guilty  of  it  he  would 
not  carry  pistols.4 

He,  defendant,  said  he, 
plaintiff,  stole  away  the 
wheat  in  the  night,  and  I 
was  well  aware  of  it,  and 
would  have  put  him  in  jail 
for  doing  it.5 

That  other  persons  would 
have  recommended  the 
plaintiff,  and  that  the  per- 
sons named  in  the  declara- 
tion would  have  employed 
plaintiff  on  such  recommen- 
dation.6 


I  Taylor  v.  Kneeland,  1  Doug.  67. 

II  Long  v.  Fleming,  2  Miles,  104. 

3  Foster  v.  Small,  3  Whart.  138. 

4  Van  Keurin  v.  Griffis,  2  Up.  Can.  Q.  B.  Rep.  423. 
6  McNaught  v.  Allen,  8  Up.  Can.  Q.  B.  Rep.  304. 

"  Sterry  v.  Foreman,  2  Car.  &  P.  592. 


578 


VARIANCE. 


[CL  XV. 


ALLEGATION. 

You  swore  false. 


PROOF. 

You  have  sworn  false.1 


She  is  a  great  thief. 

That  plaintiff  then  had 
three  or  four  vessels  in  the 
river. 


She  is  a  bad  one.2 

That  plaintiff  had  given 
out  that  there  were  three 
or  four  vessels  in  the  river.3 


This  is  my  umbrella.  He 
stole  it  from  my  back-door. 

Stolen. 

You  robbed  the  mail. 


It  is  my  umbrella.  He 
stole  it  from  my  back-door.4 

Taken  out  of  my  yard.5 

I  am  not  like  you,  run- 
ning about  the  country  with 
forged  deeds  and  robbing 
the  mail,  as  you  did.6 


Plaintiff  had  sworn  a  lie, 
and  it  is  in  him,  for  he  had 
sworn  what  he,  defendant, 
could  prove  to  be  a  point- 
blank  lie. 


Plaintiff  had  sworn  off  a 
just  account,  and  that  he, 
defendant,  could  or  would 
prove  it.7 


You  would  steal,  and  you  A  man   that   would   do 

will  steal.  that  would  steal.8 


1  Sanford  v.  Gaddis,  15  111.  228. 

a  Hancock  v.  Winter,  2  Marsh.  502. 

3  Wood  v.  Adams,  6  Bing.  481;  4  C.  &  P.  268. 

4  Walters  v.  Mace,  2  B.  &  A.  756 ;  1  Chit.  507.     The  allegation  concerned  a  thing 
present,  and  the  proof  a  thing  not  present. 

6  Shepherd  v.  Bliss,  2  Stark.  Rep.  510. 

6  McBean  v.  Williams,  5  Up.  Can.  Q.  B.  Rep.  0.  S.  689. 

7  Berry  v.  Dryden,  7  Mis.  324. 

8  Sties  v.  Kemble,  27  Penn.  St.  Rep.  112. 


372.] 


VARIANCE. 


579 


ALLEGATION". 

I,  defendant,  was  sum- 
moned as  a  grand  juror  at 
last  court,  but  I  got  the 
court  to  excuse  me  from 
serving,  for  if  I  had  served 
I  would  have  been  bound 
to  have  indicted  W.  for 
theft. 


PEOOF. 

If  I,  defendant,  had  served 
on  the  grand  jury,  I  would 
have  been  bound  to  have 
indicted  Mr.  Street,  the 
plaintiff.1 


Mismanagement  or  igno- 
rance. 

There  was  a  collusion  be- 
tween A.,  B.,  and  C. 


You  stole  a  dollar  from 


A. 


Venereal  disease. 


Ignorance  or  inattention.2 


There  was  a  collusion  be- 
tween A.  and  B.3 


You  stole  a  dollar  from 


B.4 


Disgraceful  disease.5 


§  372.  In  New  York,  under  the  Code  of  Procedure, 
great  latitude  of  amendment  is  allowed ;  besides  the  right 
to  amend  once  of  course,  the  court  may  order  an  amend- 
ment before  or  upon  the  trial,  or  at  any  time  thereafter.6 


1  Street  v.  Bushnell,  24  Miss.  (3  Jones)  328. 

*  Brooks  v.  Blanchard,  1  Cr.  &  M.  779  ;  3  Tyrw.  844. 

s  Johnson  v.  Tait,  6  Binn.  121. 

4  Self  v.  Gardner,  15  Mis.  480. 

6  Wagaman  v.  Byers,  17  Md.  1S3.  These  following  are  adjudged  material  vari- 
ances: If  the  declaration  be  for  these  words,  "Thou  procuredst  eight  or  ten  of  thy 
neighbors  to  perjure  themselves,"  and  the  jury  find  that  he  said,  Thou  hast  caused 
eight  or  ten,  &c,  for  it  might  be  a'remote  cause,  scilicit,  without  procurement.  Nar. 
(the  declaration),  He  is  a  bankrupt.  Verdict,  He  will  be  a  bankrupt  within  two 
days.  Nar.  He  is  a  thief.  Verdict,  He  stole  a  horse.  Nar.  Thou  art  a  murderer. 
Verdict,  He  is,  <fec.  Nar.  1  know  him  to  be  a  thief.  Verdict,  I  think  him  to  be  a 
thief.  And  at  p.  330 :  Nar.  Strong  thief.  Verdict,  Thief.  Nar.  I  say,  Ac,  Verdict, 
I  affirm  or  I  doubt  not.  Nar.  The  plaintiff  will  do  such  a  thing.  Verdict,  I  think  in 
my  conscience  he  will  do  such  a  thing.     (1  Trials  per  Pais,  329.) 

6  Code  of  Procedure,  §§  169,  172,  173. 


580  AMENDMENT.  [Cll.  XV. 

Prior  to  the  Code  of  Procedure  a  plaintiff  was  allowed  to 
amend  inducement  after  issue,  where  otherwise  the  right 
of  action  would  have  been  barred  by  the  statute  of  limita- 
tions.1 Plaintiff  allowed  to  insert  additional  words,  but 
not  a  new  cause  of  action.2  Plaintiff  allowed  to  insert  a 
newly  discovered  cause  of  action.8  Defendant  permitted 
to  add  an  additional  justification.4  Amendments  too, 
seem  to  be  allowed  with  great  liberality  in  the  courts  in 
England;  thus  another  count  was  allowed  to  be  added 
after  a  rule  for  a  new  trial.5  On  the  trial  the  words 
charged  were  allowed  to  be  amended,  the  substance  of  the 
allegation  remaining  the  same.6  Plaintiff  allowed  to 
amend  by  alleging  that  the  words  were  spoken  of  him  in 
his  character  of  auctioneer.7  Leave  to  plead  a  justifica- 
tion, after  verdict,  denied.8  Where  the  declaration  alleged 
the  publication  of  a  libel  contained  in  and  being  an  article 
in  a  certain  weekly  printed  paper  called  The  Paul  Pry. 
It  was  proved  on  the  trial  that  the  defendant  gave  to 

1  Tobias  v.  Harland,  1  Wend.  93.  Leave  to  add  a  new  count  granted  (Conroe  v. 
Conroe,  47  Penn.  St.  R.  198),  but  denied  after  right  of  action  had  been  barred  by 
statute  of  limitations.  (Smith  v.  Smith,  45  Penn.  St.  Rep.  403.)  An  amendment  is 
as  of  the  commencement  of  the  action.     (Horton  v.  Banner,  6  Ky.  (Bush.)  596.) 

a  Weston  v.  Worden,  19  Wend.  647.  Plaintiff  permitted  on  the  trial  to  add  a  new 
cause  of  action.     (Miles  v.  Van  Horn,  17  Ind.  245.) 

3  Williams  v.  Cooper,  1  Hill,  637.  Leave  to  add  a  justification  refused.  (Waters 
v.  Guthrie,  2  Bailey,  106.) 

*  Graham  v.  Woodhull,  1  Car.  497.  Defendant  on  trial  allowed  to  strike  out 
general  issue  and  plead  a  justification.     (Anon.  1  Hill  (So.  Car.)  251.) 

6  Wyatt  v.  Cocks,  10  Moore,  504.  And  see  Clarke  v.  Albert,  1  Gale,  358.  The 
statutes  as  to  amendments  to  be  liberally  construed.  (Smith  v.  Knowelden,  9  Dowl. 
40.) 

6  Pater  v.  Baker,  3  C.  B.  831 ;  Foster  v.  Pointer,  9  Car.  cfc  P.  718  ;  Saunders  v. 
Bates,  1  Hurl.  &  N.  402 ;  and  see  Lister  v.  McXeal,  12  Ind.  302. 

7  Ramsdale  v.  Greenacre,  1  Fost.  &  F.  61. 

8  Kirby  v.  Simpson,  3  Dowl.  Pra.  Cas.  791.  Leave  to  add  a  plea  of  the  statute  of 
limitations  refused.  (Allensworth  v.  Coleman,  5  Dana,  315.)  But  granted.  (Brickett 
v.  Davis,  21  Pick.  404.)  Where  the  defense  was  that  the  words  complained  against 
were  parts  of  two  articles,  which  articles  were  fair  comments,  on  demurrer  the  court 
held  the  plea  defective,  but  permitted  the  defendant  to  amend  by  substituting  words 
for  articles,  so  as  to  read,  which  words  were  fair  comments.  (Morrow  v.  McGovern, 
1  Ir.  C.  L.  579.) 


§  372.]  AMENDMENT.  581 

several  persons  to  read  a  printed  slip  of  paper  containing 
the  alleged  libel,  but  it  did  not  satisfactorily  appear  that 
such  slip  had  been  cut  from  The  Paul  Pry,  the  plaintiff 
was  allowed  to  amend  the  record — without  terms  by 
striking  out  the  words  in  italics,  and  this  course  was  ap- 
proved by  the  court  in  banc.1  Where  the  words  charged 
were  "  S.  is  to  be  tried  at  the  Old  Bailey  for,"  &c,  and 
the  proof  was  "  I  have  heard  that  S.  is  to  be  tried  at  the 
Old  Bailey  for,"  &c,  the  plaintiff  had  leave  to  amend  on 
payment  of  costs.2  Where  the  words  alleged  were  "  there 
have  been  many  inquests  held  upon  persons  who  have 
died  because  he  attended  them,"  and  the  proof  was 
"Several  have  died  that  he  (plaintiff)  has  attended,  and 
inquests  have  been  held  on  them,"  an  amendment  was  al- 
lowed and  approved  in  banc.3  The  court  refused  an 
amendment  where  it  was  of  opinion  that  the  words  as 
proved  did  not  impute  an  actionable  charge,4  and  the 
court  refused,  on  the  trial,  at  the  instance  of  the  plaintiff 
to  strike  out  superfluous  averments  and  innuendoes, 
which  appeared  to  have  been  introduced  to  create  a  pre- 
judice against  the  defendant,  and  the  application  was  not 
made  until  after  the  libel  was  read  to  the  jury.5 


1  Foster  v.  Pointer,  9  C.  &  P.  718,  722. 

s  Smith  v.  Knowelden,  2  M.  &  Gr.  561. 

s  Southee  v.  Denny,  1  Ex.  196. 

4  Camfield  v.  Bird,  3  C.  <fe  K.  66.  An  amendment  will  not  be  allowed,  if  the 
effect  of  it  be  to  afford  reasonable  ground  for  demurrer.  (Martyn  v.  Williams,  1 
Hurl.  &  N.  817;  Caulfield  v.  Whitworth,  18  Law  Times,  N.  S.  527.) 

6  Prudhomme  v.  Eraser,  1  M.  &  Rob.  435.  Amendment  allowed  (Pater  v.  Baker 
3  C.  B.  831 ;  and  see  Huckle  v.  Reynolds,  7  C.  B.  N.  S.  114;  Saunders  v.  Bate,  1 
Hurl.  &  N.  402;  Ramsdale  v.  Greenacre,  1  Fost.  <fc  F.  61).  Where  the  words  alleged 
were  "  he  was  not  sober,"  and  the  words  proved  were  he  was  "as  drunk  as  a  sow," 
and  the  latter  words  were  relied  on  as  evidence  of  malice,  and  as  taking  away  the 
privilege  of  the  occasion  on  which  the  words  were  spoken,  the  amendment  was 
denied.  (Sutton  v.  Plumridge,  16  Law  Times,  N.  S.  741.)  And  where  the  words  as 
laid  in  the  declaration  imputed  a  direct  charge  of  felony,  and  the  proof  was  that  the 
words  were  to  the  effect  that  a  report  was  in  circulation  that  plaintiff  had  committed 
a  felony,  it  was  held  to  be  a  material  variance,  and  leave  to  amend  was  refused. 
(Pearse  v.  Rogers,  2  Fost.  &  F.  137.) 


CHAPTEE  XVI. 


EVIDENCE   FOR    PLAINTIFF. 


Proof  of  publication  ;  of  oral  publication  ;  of  publication 
in  writing  ;  of  defendants  liability — Opinion  of  wit- 
nesses as  to  meaning — Proof  of  inducement ;  of  plaint- 
iff  s  good  reputation ;  of  malice;  to  aggravate  damages 
— Falsehood  not  evidence  of  malice — Other  publications 
by  defendant;  subsequent  publications;  publication 
after  commencement  of  action — Defendants  ill-will  to 
plaintiff — Ill-will  to  plaintiff  of  persons  other  than  the 
defendant — The  publication  itself  evidence  of  mcdice — 
Attempted  justification  an  aggravation — Evidence  in 
reply. 

§  373.  If  the  publication  is  denied,  a  publication  must 
be  proved,  and  the  publication  proved  must  be  one  for 
which  the  defendant  is  responsible.  On  this  subject, 
much  has  already  been  said  in  a  previous  chapter  (Ch. 
vi).  Whether  there  has  been  any  publication  by  the  de- 
fendant is  a  question  of  fact  for  the  jury,  but  what 
amounts  to  a  publication  for  which  the  defendant  is 
responsible  as  publisher  is  a  question  of  law  for  the  court. 
If  the  facts  were,  that  the  defendant  has  posted  up  a  libel 
in  a  public  place,  but  had  taken  it  down  again  before  any 
one  had  read  it,  there  would  in  point  of  law  be  no  pub- 
lication, but  if  it  were  doubtful  whether  before  it  was 
taken  down  some  one  had  not  read  it,  that  would  be  a 
question  of  fact  for  the  jury.1 


1  Stark.  Ev.  tit.  Law  and  Fact.     In  those  States  in  which  a  party  may  be  wit- 
ness in  his  own  behalf,  the  plaintiff  may  prove  the  speaking  by  the  defendant  of  the 


PROOF   OF   PUBLICATION".  583 

§  374.  The  post-mark  on  a  letter  has  been  held  prima 
facie  evidence  of  the  publication  of  the  letter.1  The  pro- 
duction by  the  plaintiff  on  the  trial  of  a  letter  addressed 
to  a  third  person  held  evidence  of  the  publication  of  the 
letter,  without  the  oath  of  the  person  to  whom  the  letter 
is  addressed.3  Where  the  letter  produced  was  addressed 
to  a  person  in  Scotland,  with  the  seal  broken  and  a  post- 
mark of  a  place  in  England,  where  it  was  proved  to  have 
been  received  and  forwarded,  held  prima  facie  evidence 
that  the  letter  was  received  by  the  party  to  whom  it  was 
addressed,  and  of  its  publication.8  Where  the  defamatory 
matter  was  contained  in  a  letter  addressed  by  the  defend- 
ant to  the  plaintiff,  and  there  was  no  evidence  of  its  pub- 
lication, other  than  the  production  of  the  letter  by  the 
plaintiff,  it  was  held  not  sufficient ; 4  but  where,  in  addi- 
tion, it  was  shown  that  the  letter  was  in  the  handwriting 
of  the  defendant,  and  that  he  had  read  it  aloud  in  the 
presence  of  several  persons,  it  was  held  that  the  letter 
might  be  read  to  the  jury.5  The  defendant  had  been 
chairman  of  a  public  meeting,  at  which  the  libel  in 
question  had  been  signed  by  him,  and  ordered  by  the 


words  complained  against,  although  other  persons  than  the  plaintiff  and  defendant 
were  present  at  the  time.  (Hess  v.  Fockley,  25  Iowa,  9.)  Where  the  only  witness 
to  prove  an  oral  publication  was  a  German,  the  court  refused  to  disturb  a  verdict  for 
the  plaintiff  on  the  ground  that  it  was  not  shown  but  that  the  words  were  spoken  in 
English,  which  language  the  witness  did  not  understand.  (Hurtert  v.  Weines,  27 
Mich.  134.) 

1  Shipley  v.  Todhunter,  7  G.  &  P.  680;  Hitchon  v.  Best,  1  B.  &  B.  299 ;  Rex  v. 
Watson,  1  Camp.  215;  Rex  v.  Johnson,  7  East,  65;  Fletcher  v.  Braddyll,  3  Stark. 
Cas.  64;  Rex  v.  Williams,  2  Camp.  505;  Rex  v.  Girdwood,  East  P.  C.  1116. 

s  Callan  v.  Gaylord,  3  Watts,  321.  A  post-mark  does  not  prove  itself;  how 
proved  see  Abbey  v.  Lill,  5  Bing.  299  ;  Woodcock  v.  Ilouldsworth,  16  M.  &  W.  124. 

'  Warren  v.  Warren,  1  Cr.  M.  &  R.  250 ;  4  Tyrw.  850 ;  Stocken  v.  Collen,  7M.& 
W.  515. 

4  Mcintosh  v.  Matherly,  9  B.  Monr.  119. 

6  McCombs  v.  Tuttle,  5  Blackf.  431.  See  note  1,  p.  142,  ante.  Evidence  of  the  read- 
ing the  libel  in  a  public  place,  and  of  comments  upon  it  in  defendant's  hearing,  and  that 
it  was  put  up  on  handbills  by  persons  unknown,  was  permitted  to  be  proved.  (Rice 
v.  Withers,  9  Wend.  138.) 


584  EVIDENCE   FOR   PLAINTIFF.  [Ch.  XVI. 

meeting  to  be  published :  on  a  demurrer  to  evidence,  an 
affidavit  of  the  defendant,  and  one  of  A,  which  the  defend- 
ant in  his  own  affidavit  referred  to  as  correct,  stating  that 
the  address  was  ordered  to  be  published,  and  admitting 
and  justifying  the  publication,  together  with  a  copy  of 
the  address  annexed  to  the  affidavits,  and  referred  to  in 
them,  were  held  sufficient  evidence  of  publication.1 

§  375.  Where  a  witness  who  heard  the  words  spoken 
immediately  committed  them  to  writing,  he  may,  on 
swearing  that  he  wrote  down  the  exact  words,  read 
what  he  wrote  in  evidence.  If  the  words  were  not 
written  down  until  some  time  after  the  witness  heard 
them,  although  he  may  not  read  his  memorandum  in 
evidence,  he  may,  to  refresh  his  memory,  refer  to  his 
original  memorandum,2  but  not  to  a  copy  of  it.3  In 
actions  of  slander,  witnesses  cannot  be  allowed  to 
state  the  impression  the  words  used  made  upon  their 
minds,  but  they  must  state  positively,  or  as  near  as 
memoiy  will  allow,  the  exact  words.4 

§  376.  In  an  action  of  libel  against  the  proprietor  of 
a  newspaper,  a  copy  of  the  paper  bought  at  the  office,  if 
alleging  on  its  face  that  it  was  the  property  of  the 
defendant,  is  sufficiently  connected  with  defendant  by 
proof,  and  a  paragraph  in  it  is  relevant  to  read  to  the  jury 
to  show  the  circulation  of  the  paper.5  On  a  declaration 
in   slander,   consisting  of  a   single   count,   in   which   the 


1  Lewis  v.  Few,  5  Johns.  1. 

2  Sandwell  v.  Sandwell,  Holt  R.  295;  Huff  v.  Bennett,  6  N.  Y.  337. 
s  Burton  v.  Plummer,  2  Adol.  &  El.  343. 

4  Teague  v.  Williams,  1  Ala.  844 ;  Alley  v.  Neely,  5  Blackf.  200 ;  contra,  Hawks 
v.  Patton,  18  Geo.  52.  Where,  in  an  action  for  slander,  it  is  important  to  show  that 
the  charge  proyed  by  a  witness  for  the  plaintiff  had  reference  to  a  trial,  it  is  not 
indispensable  for  the  witness  to  give  the  exact  words  of  the  defendant  showing  such 
reference ;  but  if  this  is  desired,  they  should  he  elicited  on  cross-examination. 
(Douge  v.  Pearce,  13  Ala.  127.) 

6  Fay  v.  Bennett,  4  Duer,  247. 


§  376.]  PROOF   OF   PUBLICATION.  585 

slanderous  words  were  alleged  to  Lave  been  uttered  by 
the  defendant  "  on  the  1st  day  of  November,  1856,  and 
on  divers  other  days  and  times  before  the  purchase  of  the 
plaintiff's  writ,"  it  was  held,  that  the  plaintiff  might,  in 
support  of  his  action,  prove  a  single  uttering  of  the  slander 
by  the  defendant  on  any  day  prior  to  the  date  of  the 
writ.1  A  declaration  alleged  that  the  defendants  published, 
or  caused  to  be  published,  in  a  certain  pamphlet,  a  libel 
concerning  the  plaintiff.  From  the  evidence,  it  appeared 
that  the  defendants  were  instrumental  in  procuring  the 
vote  of  a  medical  society  expelling  the  plaintiff  therefrom 
for  gross  immorality.  The  vote  was  published  among  the 
transactions  of  the  society,  by  the  regular  committee  of 
publication,  of  which  the  defendants  were  not  members. 
Held,  that  the  allegation  in  the  declaration  was  not 
supported.2  That  one  had  heard  of  a  slanderous  report 
with  regard  to  the  plaintiff,  is  evidence  to  prove  the 
circulation  of  the  report,  but  not  to  prove  that  the  de- 
fendant circulated  the  report.3 

Where  a  declaration  for  publishing  a  libel  does  not 
purport  to  set  it  forth  in  liaec  verba,  and  a  libel  correspon- 
ing  with  the  declaration  is  produced  on  the  trial,  if  the 
jury  believe  that  the  defendant  published  any  part  of  the 
libellous  matter,  they  must  find  for  the  plaintiff.4  It  is 
calculated  to  mislead  the  jury  to  refer  it  to  them  to  de- 
termine whether  the  defendant  "  in  substance "  spoke  or 
published  the  words  charged,  without  explaining  the 
meaning  that  the  law  would  attach  to  that  expression  in 
connection  with  the  proof  of  the  slander  charged.5 

1  Rice  v.  Cottrell,  5  Rhode  Island,  340;  Norris  v.  Elliott,  39  Cal.  72;  and  as  to 
proving  time  of  publication,  see  Richardson  v.  Roberts,  23  Geo.  215;  Wright  v. 
Britton,  1  Morris,  286. 

2  Barrows  v.  Carpenter,  1 1  Cush.  456. 
s  Schwartz  v.  Thomas,  2  Wash.  107. 

4  Metcalf  v.  Williams,  3  Litt.  387. 
*  Attebury  v.  Powell,  29  Mis.  (8  Jones)  429. 
38 


586  EVIDENCE   FOR   PLAINTIFF.  [Ch.   XVI. 

§  377.  The  words  of  a  defamatory  writing  cannot  be 
proved  by  parol,  until  it  has  been  shown  that  the  writing 
itself  cannot  be  produced.1  But  if  after  the  publication 
the  defendant  obtains  possession  of  the  writing  and  re- 
fuses to  produce  it,  in  that  case  secondary  evidence  of  its 
contents  may  be  given.2  Where,  to  prove  the  defendant 
the  author  of  a  libel  which  the  defendant  had  notice  to 
produce,  A.  was  called,  who  swore  he  received  the  manu- 
script of  the  libel  from  the  defendant  and  returned  it  to 
him.  But  on  cross-examination  the  witness  stated  that  he 
had  not  delivered  the  manuscript  to  the  defendant  himself, 
but  had  delivered  it  to  his  (the  witness')  own  servant  to 
deliver  to  the  defendant.  A.'s  servant  was  called,  who  tes- 
tified that  he  delivered  the  manuscript  to  the  defendant's 
servant ;  held,  not  sufficient  to  enable  the  prosecutor  to 
give  parol  evidence  of  the  existence  of  the  paper,  nor  for 
considering  the  defendant  as  the  author  of  the  libel.3 

8  377a.  There  are  instances  of  the  courts  having  re- 
fused  to  compel  the  production  of  the  writing,  and  at  the 
same  time  have  excluded  secondary  evidence  of  its  con- 
tents ;  as,  where  the  communication  was  addressed  to  the 
governor  of  a  State  respecting  a  State  officer,  the  court 
held  that  the  governor  to  whom  it  was  addressed  might 
exercise  his  own  discretion  as  to  its  production,  and  ex- 
cluded parol  evidence  of  its  contents.4 

1  Simpson  v.  Wiley,  4  Porter,  215  ;  Aspinwall  v.  Whitmore,  1  Root,  408;  and  see 
McGrath  v.  Cox,  3  Up.  Can.  Q.  B.  Rep.  332. 

2  "Winter  v.  Donovan,  8  Gill,  370;  Le  Merchant's  case,  2  T.  R.  201 ;  Layer's  case, 
6  State  Tr.  229. 

3  Rex  v.  Pearce,  Peake's  Cases,  75.  There  is  a  presumption  that  one  to  whom  a 
message  has  been  entrusted  for  delivery  has  delivered  it.  (Middleton  v.  Earned,  4 
Ex.  241 ;  Wells  v.  Webber,  2  Fost.  &  F.  715.) 

*  Gray  v.  Pentland.  2  S.  &  R.  23;  4  S.  <fe  R.  420  ;  and  see  Wyatt  v.  Gore,  Holt's 
Cases,  299;  Oliver  v.  Bentick,  3  Taunt.  456;  Howard  v.  Thompson,  21  Wend.  319; 
Beatson  v.  Skene,  5  Hurl.  &  N.  838;  M'Elveney  v.  Conellan,  17  Ir.  Com.  L.  R.  55. 
Earl  v.  Vass,  Boyd  Kinnear's  Dig.  H.  L.  Cas.  226 ;  1  Shaw's  App.  Cas.  229  ;  Home  v. 
Bentinck,  2  Brod.  &  B.  130.  In  an  action  for  libel,  pending  in  the  Circuit  Court  of 
the   District  of  Columbia,   the   Hon.   Edwin   M.   Stanton,   Secretary  of  War,   was 


§§  378-9.]  PROOF   OF    PUBLICATION.  587 

§  378.  Where  the  defamatory  writing  has  been  lost, 
secondary  evidence  of  its  contents  may  be  given.1  Where 
the  libel  (a  song)  from  which  the  publication  took  place 
was  lost,  a  printer  was  allowed  to  produce  a  similar  one 
printed  at  the  same  time  and  which  he  proved  corresponded 
with  the  one  lost.2  Where  to  sustain  an  action  of  libel, 
the  proof  sought  to  be  made  was,  that  the  publication 
was  by  an  affidavit,  made  by  the  defendant  before  a 
magistrate,  imputing  to  the  plaintiff  the  offense  of  hog- 
stealing,  and  the  only  evidence  of  the  existence  of  the 
affidavit  was  an  imperfect  memorandum  of  it,  in  the 
handwriting  of  the  magistrate,  who  was  alive  and  out  of 
the  State,  and  there  was  no  sufficient  proof  of  its  being, 
in  whole  or  in  part,  a  copy ;  it  was  held,  that  the  evidence 
was  not  sufficient  to  sustain  the  action.3 

§  379.    In  an  action  against  the  proprietor  of  a  news- 


summoned  as  a  witness  to  produce  an  original  letter  addressed  to  the  former 
Assistant  Secretary  of  "War,  Dana,  which  letter  contained  the  matter  alleged  to  be 
libellous.  Mr.  Stanton  put  in  au  affidavit  respectfully  submitting  his  objections  to 
the  production  of  the  paper  in  question,  and  asking  to  be  discharged  from  further 
attendance.  The  affidavit  bore  the  following  indorsement:  Sir:  Letters  on  file  with 
the  Heads  of  Departments  are  privileged  communications.  Unless  their  publication 
has  been  authorized,  no  copies  should  be  taken  at  private  request,  and  the  production 
of  the  original  cannot  be  compelled  in  a  suit  between  individuals.  It  has  been  ruled 
that  such  communications  cannot  be  made  the  foundation  of  an  action  for  libel. 
Then  I  think  the  head  of  a  department  is  bound  not  to  produce  a  paper  on  file  in  his 
office.  Such  a  letter  as  you  describe  is  a  privileged  communication.  (Signed.)  J. 
Speed,  Attorney -General."  And  in  an  action  for  libel,  it  was  held  that  a  member  of 
Parliament  could  not  he  examined  as  to  what  was  said  by  the  plaintiff  in  the  course 
of  a  debate  in  Parliament.  (Plunkett  v.  Cobbett,  5  Esp.  136.)  The  plaintiff  having 
failed  in  his  application  to  the  Senate  for  the  removal  of  the  injunction  of  secrecy,  the 
testimony  of  a  Senator  was  admitted  to  prove  that  plaintiff's  nomination  had  been 
rejected  by  the.  Senate.  (Law  v.  Scott,  5  liar.  &  J.  438.)  It  has  been  held  to  be 
optional  on  the  part  of  counsel  whether  he  will  disclose  what  passed  in  court  on  his 
making  a  motion.  (Curry  v.  Walter,  1  Esp.  456.)  And  held  that  a  letter  to  the 
Chief  Secretary  of  the  Post-Master-General,  is  not  privileged  from  disclosure  in  court 
on  the  ground  that  it  is  an  official  communication  to  a  public  officer.  (Blake  v. 
Pilfold,  1  Moo.  v.  Rob.  198.) 

1  Gates  v.  Bowker,  18  Verm.  (3  Washb.)  23 ;  Weir  v.  lloss,  6  Ala.  881. 

2  Johnson  v.  Hudson,  7  Ad.  &  Ell.  233,  n. 
8  Sanders  v.  Rollinson,  2  Strobh.  447. 


588  EVIDENCE   FOR   PLAINTIFF.  [Ch.  XVI. 

paper  for  a  libel  contained  in  it,  proof  that  the  paper 
came  from  the  defendant's  office,  and  was  one  copy  of  an 
edition  of  the  same  date,  and  alleging  on  its  face  that  he 
is  the  proprietor,  is  proof  of  a  publication  by  him  ;  -1  and 
so  in  such  an  action,  testimony  by  a  subscriber  for  the 
paper,  upon  beirig  shown  the  number  of  the  paper  con- 
taining the  article  in  question,  that  it  was  in  all  respects 
similar  to  the  paper  left  at  his  office,  and  that  he  had  read 
the  article  contained  in  the  paper  produced  in  the  one  left 
at  his  office,  is  sufficient  proof  of  publication,  without 
producing  the  paper  left  at  his  office.2  And  where  a 
witness  swore  that  he  was  a  printer,  and  had  been  in  the 
office  of  the  defendant  when  a  certain  paper  was  printed, 
and  he  saw  it  printed  there,  and  the  paper  produced  by 
the  plaintiff  was,  he  believed,  printed  with  the  types  used 
in  the  defendant's  office  ;  held  that  this  was  prima  facie 
evidence  of  the  publication  by  the  defendant.8  The  wit- 
ness in  this  case  might  have  refused  to  testify  on  the 
ground  that  he  inculpated  himself,4  but  as  he  did  not 
claim  his  privilege,  his  testimony  was  properly  received ; 
and  so  it  was  held  in  the  case  of  a  witness  who  had 
written  the  defamatory  matter  at  the  request  of  the 
defendant.5 

§  380.    Proof  that  the  defendant  gave  a  bond  to  the 
stamp-office  for  the  duties   on   the   advertisements   in  a 


1  The  State  v.  Jeandell,  5  Harring.  475  ;  Fry  v.  Bennett,  4  Duer,  247. 
4  Huff  v.  Bennett,  4  Sandf.   120;  and  see  Commonwealth  v.  Blanding,  3  Pick. 
304. 

3  Southwick  v.  Stevens,  10  Johns.  442;  McCorkle  v.  Burns,  5  Binney,  340. 

4  Moloney  v.  Bartley,  3  Camp.  210;  ante,  §  270.  Where  a  defendant  is  subpoenaed 
as  witness  for  the  plaintiff,  he  cannot  object  to  being  sworn,  on  the  ground  that  any 
relevant  questions  put  to  him  would  tend  to  criminate  himself,  the  plaintiff  has  a 
right  to  have  him  sworn,  and  defendant  must  answer  the  questions  put  to  him,  or  ob- 
ject, as  any  other  witness,  to  any  question  that  would  criminate  him.  (Boyle  v.  "Wise- 
man, 10  Ex.  647.)  As  to  interrogatory  to  defendant  inquiring  if  he  wrote  the  alleged 
libel,  see  Inman  v.  Jenkins,  Law  Rep.  V,  738,  C.  P. 

6  Schenck  v.  Schenck,  1  Spencer,  208. 


§  381.]  defendant's  liability.  589 

newspaper,  under  the  statute  29  George  III,  ch.  50,  and 
that  he  had  occasionally  applied  at  the  stamp-office 
respecting  the  duties,  was  held  to  be  sufficient  evidence 
of  his  being  the  publisher  of  such  newspaper.1  And  the 
production  of  a  certified  copy  of  the  affidavit  required  by 
the  statute  38  George  III,  ch.  78,  with  a  newspaper  con- 
taining the  libel,  corresponding  with  the  paper  described 
in  the  affidavit ;  held  to  be  sufficient  evidence  of  publica- 
tion by  the  defendant.2  Where,  in  an  action  for  libel  in 
a  newspaper,  the  one  put  in  had  the  place  of  publication 
"  at  the  corner  of  Charles  street  and  Hadfield  street,  in 
the  parish  of  M.,"  the  certificate  of  the  stamp-office 
declaration  was  at  "  No.  23  Charles  street,"  in  the  parish, 
&c. ;  held  sufficiently  to  identify  the  newspaper  as  pub- 
lished by  the  declarant,  within  the  6th  and  7th  William 
IV,  ch.  76.3 

§  381.  The  publication  of  a  libel  in  a  newspaper  may 
be  proved  by  producing  the  copy  of  the  newspaj)er  filed 
in  the  office  of  the  commissioner  of  stamps,4  or  by  pro- 
ducing a  copy  filed  in  the  office  of  publication  of  such 
newspaper.5  On  the  trial  of  an  action  for  a  libel  in  a 
newspaper,  a  witness  stated  that  he  was  president  of  a 
literary  institution  having  eighty  members;  that  about 
the  date  of  the  paper  proved,  one  was  brought  (he  could 

1  Rex  v.  Topham,  4  T.  R.  126.  Distributing  newspapers  containing  defamatory 
matter  and  receiving  pay  for  them  through  an  agent,  is  sufficient  evidence  of  publi- 
cation by  defendant.     (The  State  v.  Davis,  3  Yeates,  128.) 

a  Mayne  v.  Fletcher,  9  B.  &  Or.  382 ;  Rex  v.  Hunt,  9  B.  &  Cr.  382n. ;  Rex  v.  Hart, 
10  East,  94. 

3  Baker  v.  Wilkinson,  1  Carr.  &  M.  399 ;  Rex  v.  Donnison,  4  B.  &  Ad.  698. 

*  Cook  v.  Ward,  6  Bing.  409. 

5  Rex  v.  Pearce,  Peake's  Cas.  75.  A  witness  may  testify  to  the  contents  of  a  paper 
not  produced,  it  being  a  printed  one,  always  issued  in  the  same  form.  (Butler  v. 
Maples,  9  Wall.  766.)  To  prove  the  publication  in  a  newspaper,  it  is  not  necessary 
to  produce  a  copy  actually  published  ;  it  is  sufficient  to  produce  a  copy,  and  prove 
that  papers  of  the  same  kind  were  published.  (Simmons  v.  Holster,  13  Min.  249.) 
Against  a  person  not  connected  with  the  paper,  mere  proof  of  the  publication  of  the 
paper  not  sufficient.    (Id.) 


590  EVIDENCE   FOR   PLAINTIFF.  [Cll.  XVI. 

not  say  by  whom)  to  the  reading-room  of  the  institution, 
and  left  there  gratuitously ;  that,  a  fortnight  after,  it  was 
taken  away  without  his  authority,  and  never  returned; 
that  he  had  searched  for  it  and  could  not  find  it,  and 
believed  it  to  be  lost  or  destroyed ;  that  the  title  of  it 
was  the  same  as  that  proved,  and,  as  far  as  he  could  judge 
from  a  glance  at  it,  such  paper  contained  the  libel  in  ques- 
tion, and  he  believed  it  was  a  copy  of  that  paper.  He 
was  not  cross-examined.  Held,  first,  that  secondary  evi- 
dence of  the  contents  of  the  copy  was  properly  admitted ; 
secondly,  that  there  was  evidence  for  the  jury  that  the 
paper  so  sent  to  the  institution  was  a  copy  of  that  which 
contained  the  libel ;  thirdly,  that,  though  sent  by  a  person 
unknown,  it  was  evidence  against  the  defendant,  not  to 
show  malice,  but  to  affect  the  damages,  by  showing  the 
extent  of  circulation.1  But  where  a  defendant  alleged, 
in  mitigation,  that  a  libellous  book  was  published 
against  him  by  plaintiff,  and  in  support  of  such  allegation 
a  bookseller  produced,  from  his  own  possession,  a  printed 
book,  stating  his  belief  that  it  is  one  of  a  number  of  copies 
published  at  his  shop ;  held,  that  this  was  not  evidence 
for  the  jury  that  another  book  with  the  same  contents  was 
actually  published.2 

§  382.  Where  a  person  has  admitted  that  he  was  the 
author  of  a  libel  in  a  certain  newspaper,  any  other  news- 
paper of  the  same  impression  may  be  read  to  the  jury, 
and  is  not  secondary  evidence.3  A  newspaper  may  be 
read  in  evidence  although  not  stamped.4  To  prove  the 
publication  of  a  libellous  pamphlet,  a  witness  testified 
that  she  received  from  the  defendant  a  copy  of  a  pamphlet, 

1  Gathercole  v.  Miall,  15  M.  &  W.  319,  15  Law  Jour.  Rep.  179,  Ex. ;  10  Jurist, 
337;  7  Law  Times,  89. 

2  Watts  v.  Fraser,  7  Ad.  &  E.  223  ;  1  Mo.  &  Rob.  449 ;  Moore  v.  Oastler,  1  Mo.  <fe 
Rob.  451,  n. 

8  McLaughlin  v.  Russell,  17  Ohio,  475 ;  W.oodburn  v.  Miller,  Cheves,  194. 
4  Rex  v.  Pearce,  Peake's  Cas.  75;  1  Esp.  456. 


§  382.]  defendant's   liability.  591 

of  which  she  read  some  portions,  and  lent  it  to  several 
persons  in  succession,  who  returned  it  to  her,  and  although 
there  was  no  mark  by  which  she  could  identify  it,  she 
believed  the  copy  produced  to  be  the  same,  but  could  not 
swear  that  it  was ;  held,  that  this  was  evidence  of  publi- 
cation proper  to  be  left  to  the  jury.1  Where  several 
copies  of  a  placard  are  printed,  and  a  party  adopts  and 
uses  some  of  the  copies,  all  the  rest  are  duplicate  originals, 
and  one  of  them  may  be  read  against  such  party,  without 
notice  to  produce.2  But  placards  in  the  windows  of  third 
persons,  setting  forth  the  forthcoming  contents  of  the 
newspaper  in  which  the  libel  was  contained ;  held,  inad- 
missible against  the  author,  unless  he  were  connected 
with  the  publication  of  them.3  If  the  manuscript  of  a 
libel  be  proved  to  be  in  the  handwriting  of  the  defendant, 
and  the  libel  be  also  proved  to  have  been  printed  and 
published,  this  is  evidence  to  go  to  the  jury  that  it  was 
published  by  the  defendant,  although  there  be  no  evi- 
dence given  to  show  that  the  printing  and  publication 
were  by  his  direction.4  And  as  handwritings  may  be 
compared,  in  an  action  for  libel,  if  the  testimony  is  cor- 
roborated from  other  sources,5  papers  in  the  handwriting 
of  the  defendant,  found  in  the  house  of  the  editor  of  the 
newspaper  in  which  the  libel  was  published,  were  held 
admissible  to  prove  the  publication  by  the  defendant.6 


'Fryer  v.  Gathercole,  18  Law  Jour.  38*1,  Ex.;  13  Jurist,  542 ;  13  Law  Times, 
285. 

2  Rex  v.  Watson,  2  Stark.  Rep.  190.     See  Reg.  v.  Boucher,  1  Fost.  &  F.  486. 

3  Raikes  v.  Richards,  2  Car.  &  P.  562. 
*  Reg.  v.  Lovett,  9  Car.  &  P.  462. 

'Cullan  v.  Gayiord,  3  "Watts,  321;  Waddington  v.  Cousins,  7  Car.  &  P.  595;  see 
Rex  v.  Cator,  4  Esp.  117;  Case  of  the  Seven  Bishops,  4  State  Tr.  338. 

6  Tarpley  v.  Blabey,  2  Bing.  N.  S.  437  ;  2  Sc.  642;  7  Car.  &  P.  395  ;  May  v.  Brown, 
3  B.  tfe  Or.  113;  Finnerty  v.  Tipper,  2  Camp.  72;  Wakley  v.  Johnson,  1  Ry.  AM. 
422;  Stark.  Sland.  429,  3  Ed.  In  an  action  for  services  in  preparing  reports  for  a 
newspaper,  the  authorship  being  in  question,  it  is  not  competent  to  ask  the  opinion  of 
a  witness  (founded  merely  on  his  haviwg  read  the  articles  and  professing  aknowlcdge 
of  the  plaintiff's  style  of  writing)  as  to  whether  the  reports  were  written  by  the  plain- 
tiff.   (Lee  v.  Bennett,  How.  Ct.  of  App.  Cas.  202.) 


592  EVIDENCE   FOR   PLAINTIFF.  [Cll.  XVI. 

§  383.  The  defendant's  liability  as  publisher  may  be 
proved  by  showing :  a  copy  of  the  alleged  libel  in  the 
defendant's  handwriting,1  addressed  to  the  editor  of  a 
newspaper ; 2  or  by  showing  that  defendant  paid  the 
printer  or  publisher  of  a  newspaper  for  the  insertion  of 
the  defamatory  matter  in  the  newspaper  of  such  printer 
or  publisher  ; 3  or  by  showing  the  defendant's  admission 
of  authorship.4  "Where  the  defendant  admitted  that  he 
was  the  author  of  the  alleged  libel,  errors  excepted,  held 
that  the  burden  was  on  him  to  show  that  the  errors  were 
material.5  The  fact  that  the  defendant  made  the  publica- 
tion to  the  witness  under  an  injunction  of  secresy,  is  no 
objection  to  the  proof  of  the  publication  by  such  wit- 
ness.6 

§  384.  The  court  and  jury,  and  not  the  witnesses,  are 
to  construe  the  words.7  And  the  opinion  of  witnesses  as 
to  the  meaning  of  the  language  published  is  not  admissible,8 


]  IfcComhs  v.  Tuttle,  5  Blackf.  431. 

a  Bond  v.  Douglass,  1  C.  &  P.  626 ;  and  see  Burdett  v.  Abbott,  5  Dowl.  201. 

3  Sehenck  v.  Schenck,  1  Spencer,  208. 

4  Commonwealth  v.  Guild,  Thatcher's  Crim.  Cas.  329  ;  Rex  v.  Burdett,  4  B.  &  A. 
Ill ;  The  Seven  Bishop's  Case,  4  State  Trials,  304.  Where  the  letter  containing  the 
defamatory  matter  was  sent  sealed,  and  the  writer  afterwards  stated,  in  the  presence 
of  several  persons,  that  he  had  got  W.  to  write  the  letter  for  him,  and  he  had  signed 
his  own  name  to  it,  and  kept  a  copy,  and  stated  the  contents  of  the  letter,  but  without 
producing  it,  or  a  copy  of  it;  held,  that  this  was  a  publication  of  the  libel  (Adams  v. 
Lawson,  11  Gratt.  (Ya.)  250.) 

6  Rex  v.  Hall,  Str.  416. 

6  McGovern  v.  Manifee,  1  B.  Monr.  314. 

7  Olmstead  v.  Miller,  1  Wend.  510.  Where  the  imputation  was  that  the  plaintiff 
was  a  truck  master,  held  that  the  term  being  composed  of  common  English  words, 
no  evidence  was  necessary  to  explain  its  meaning,  and  that  it  was  for  the  jury  to  say 
whether  under  all  the  circumstrnces  the  word  was  used  in  a  defamatory  sense. 
(Homer  v.  Taunton,  5  Hurl.  &  N.  661.)  In  Weed  v.  Bibbins,  32  Barb.  315,  held  that 
evidence  of  what  was  generally  understood  by  "  the  Cunningham  affair  "  was  im- 
properly admitted.  And  see  Justice  v.  Kirlin,  17lnd.  588;  Watcher  v.  Quenzer,  29 
N  Y.  552;  Dedway  v.  Powell,  4  Ky.  (Bush.)  11;  and  ante,  ch.  vii.  and  §§  2S1,  286. 

8  Smart  v.  Blanchard,  42  N.  Hamp.  137.  Unless  the  words  are  ambiguous,  and 
their  application  doubtful,  in  which  case  the  testimony  of  hearers  as  to  how  they  un- 
derstood the  words  is  admissible.     {Id. ;  and"  see  Barton  v.  Holmes,  16  Iowa,  252  ; 


§  384.]  EVIDENCE    OF   MEANING.  593 

and,  therefore,  a  witness  cannot  be  asked  how  he  under- 
stood the  words  published,1  nor  be  permitted  to  state  what 
meaning  he  understood  the  defendant  to  convey  by  the 
words,2  nor  the  impression  produced  on  his  mind  by  the 
whole  of  the  conversation.3  The  words  being  unambigu- 
ous, it  is  not  competent  for  a  witness  to  say  that  he  under- 
stood the  publisher  to  mean  differently  from  the  common 
import  of  the  words.4  Where  the  language  is  ambiguous 
and  it  is  doubtful  in  what  sense  the  publisher  intended 
it,  the  question  is  in  what  sense  the  hearers  under- 
stood it,  for  "the  slander  and  damage  consist  in  the 
apprehension  of  the  hearers."5  The  ordinary  sense  of 
the  words  is  to  be  taken  as  the  sense  intended  by  the  pub- 
lisher unless  the  words  are  explained  to  import  something 
different  by  other  matter,  connected  therewith.  Where 
it  is  first  shown  that  something  has  occurred  in  conse- 
quence  of  which  the  words  would  convey  a  meaning 
different  to  their  ordinary  meaning,  then  the  witness  may 
be  asked :  What  did  you  understand  with  reference  to 
such  an  expression.6  Where  the  charge  was,  "  You 
(plaintiff)  are  a  thief,  a  rogue,  and  a  swindler,"  on  not 
guilty  pleaded,  held,  that  the  defendant  could  not  prove 
circumstances  not  referred  to  and  not  known  to  the  hear- 


Smith  v.  Miles,  15  Verm.  245.)  In  Leonard  v.  Allen,  11  Cush.  241,  an  action  for 
slander,  not  by  direct  words,  but  by  expressions,  gestures,  and  intonations  of  voice, 
it  was  held  competent  for  witnesses  who  heard  the  expressions  to  state  what  they 
understood  the  defendant  to  mean  by  them,  and  to  whom  he  intended  to  apply  them. 
In  Nelson  v.  Borchenius,  52  111.  236,  it  held  that  in  an  action  for  slander  the  testi- 
mony of  the  hearers  as  to  the  sense  in  which  they  understood  the  words  is  admissible. 
But  such  testimony  is  not  conclusive  upon  the  jury.  Such  testimony  is  admissible 
as  tending  to  show  what  meaning  hearers  of  common  understanding  would  and  did 
ascribe  to  the  words. 

1  Wright  v.  Paige,  36  Barb.  438. 

a  Snell  v.  Snow,  13  Mete.  278. 

3  Harrison  v.  Bevington,  8  Car.  &  P.  708. 

*  Potts  v.  Pace,  7  Jones'  Law  (N.  Car.),  568. 

•Fleetwood?;.  Curley,  Hob.  267,  ante,  note  1,  p.  177. 

8  Daines  v.  Hartley,  3  Ex.  200 


594  EVIDENCE    FOE   PLAINTIFF.  [Ch.    XVI. 

eis  at  the  time  the  charge  was  made  in  order  to  qualify 
the  meaning  of  the  terms  used.1  The  plaintiff  and  de- 
fendant l>eing  present  at  a  tavern  where  there  had  been  a 
raffle,  defendant  said,  "I  am  surprised  at  R.  allowing  a 
blackleg  in  this  room."  On  the  trial,  a  witness  being 
asked  what  he  understood  by  "  blackleg,"  answered,  "  A 
person  in  the  habit  of  cheating  at  cards."  Held,  by  Pol- 
lock, C.  B.,  and  Watson,  B.,  that  the  evidence  was  proper; 
and  by  Martin  and  Bramwell,  BB.,  that  it  was  not  proper.2 
Nor  can  a  witness  be  asked  to  whom  he  understood  the 
defamatory  matter  to  apply.3  Where  the  libel  consisted 
of  a  statement  in  a  circular  letter  published  by  the  secre- 
tary of  a  society  for  the  protection  of  trade,  that  "  a  bill 
drawn  and  accepted  by  the  plaintiff  was  made  payable  at 
a  banker's  where  he  had  no  account ; "  held,  that  as  the 
letter  stated  a  specific  fact  which  required  no  explanation, 
a  witness  could  not  be  asked  what  he  understood  by  find- 
ing a  person's  name  in  such  a  paper ;  but  the  judge  per- 
mitted the  question  whether  such  statement  had  any  other 
meaning  beyond  that  which  was  expressed  on  its  face.4 

§  385.  Material  matter  of  inducement,  if  put  in  issue, 
must  be  proved.5  Immaterial  matter  of  inducement  may 
be  rejected  as  surplusage  and  need  not  be  proved.  Ma- 
terial matter  of  inducement  if  not  put  in  issue  is  taken  as 

1  Martin  v.  Loei,  2  Fost.  &  F.  654. 

2Barnett  v.  Allen,  3  Hurl.  <fe  Nor.  376  ;  1  Fost.  &  Fin.  235.  Jury  told  to  con- 
sider if  words  had  conveyed  meaning  of  a  person  who  had  gambled  so  as  to  be  liable 
to  a  criminal  prosecution.  (Id.)  Slander  for  the  words  "you  are  a  bunter,"  on 
the  trial  plaintiff  was  asked  what  the  word  bunter  meant,  it  was  objected  that  as 
there  was  no  innuendo  and  the  word  was  not  actionable  per  se,  nor  indeed  had  any 
meaning,  the  question  of  its  acquired  meaning  could  not  be  gone  into,  and  by  the 
court,  that  is  so,  there  being  no  innuendo.     (Rawlings  v.  Norbury,  1  Fost.  <fc  F.  341.) 

3  Rangier  v.  Himmell,  37  Penn.  St.  R.  130 ;  Eastwood  v.  Holmes,  1  Fost.  <fe  F.  347. 
Held  that  a  witness  may  say  who  is  meant  by  the  libel.  (Smalley  v.  Stark,  9  Ind. 
386.)     See  ante,  §  97,  p.  165,  n.,  aad  n.  1,  p.  177. 

4  Humphreys  v.  Miller,  4  C.  &  P.  7. 

6  "  It  is  still  necessary  under  the  plea  of  not  guilty  to  prove  the  colloquium." 
Cook  on  Defam.  145. 


§  385.]  PROOF  OF  INDUCEMENT.  595 

admitted.1  No  proof  of  it  is  necessary,  and  no  evidence 
respecting  it  is  admissible.  Matter  of  inducement  is  not 
put  in  issue  by  a  plea  of  not  guilty.2  Matter  of  induce- 
ment may  be  proved  by  parol.3  When  the  words  are 
actionable  only  by  reason  of  their  relation  to  extrinsic 
facts,  such  facts  must  be  proved ;  as  where  the  words  were 
charged  as  spoken  of  a  constable,  imputing  misconduct  in 
the  execution  of  a  bench  warrant,  the  words  not  being 
actionable  in  themselves,  it  was  held  that  the  warrant 
must  be  proven.4  Where  the  alleged  libel  was  concerning 
the  sale  by  plaintiff  of  certain  leaden  figures  called  "  Pil- 
grims' signs,"  held,  the  plaintiff  must  prove  the  objects 
referred  to  were  "  commonly  called  Pilgrims1  signs." 5  And 
in  an  action  for  a  libel  on  a  constable  alleged  to  have  been 
published  concerning  his  conduct  in  the  apprehension  of 
persons  engaged  in  stealing  a  dead  body,  it  was  averred 
what  that  conduct  had  been,  and  it  was  alleged  that 
plaintiff  had  carried  the  body  to  Surgeons'  Hall,  held  that 
the  plaintiff  must  prove  the  inducement.6  In  an  action 
against  the  editor  of  a  newspaper  for  a  libellous  publica- 
tion, it  is  admissible  for  the  plaintiff  to  show  articles  in 
subsequent  numbers  of  the  same  paper,  for  the  purpose  of 
proving  that  the  plaintiff  was  the  person  intended  to  be 
defamed.7 


1  Fradley  v.  Fradley,  8  Car.   &  P.   572;  Hearing  v.  Power,  10  M.  &.  W.  567; 
Gwynne  v.  Sharpe,  1  Car.  <fe  Mar.  532. 
a  Gwynne  v.  Sharpe,  1  Car.  <fe  M.  532. 

3  Soutbwick  v.  Stevens,  10  Johns.  443. 

4  Kinney  v.  Nash,  3  N.  Y.  177.  Under  a  declaration  setting  out  the  substance  of 
the  words  spoken  as  a  charge  of  stealing  the  plaintiff  may  prove  that  the  words 
spoken,  although  not  actionable  in  themselves,  were  rendered  actionable  by  reason  of 
certain  extrinsic  facts,  by  their  referring  to  these  facts,  and  by  the  manner  in  which 
they  were  ased,  although  the  declaration  contains  no  averment  that  I  hey  wore  spoken 
with  reference  to  any  fact  whatever.  (Allen  v.  Perkins,  1 1  Pick.  869;  Pond  v.  Hart- 
well,  id.  209.) 

6  Eastwood  v.  Holmes,  1  Fost.  &  F.  3 17. 

8  Teesdale  v.  Clement,  1  Chit.  R.  003 ;  but  this  decision  arose  out  of  the  peculiar 
form  of  the  declaration. 

7  White  v.  Say  ward,  33  Maine,  322. 


59G  EVIDENCE   FOE   PLAINTIFF.  [Cll.  XVI. 

§  386.  Pursuant  to  a  rule  already  referred  to  (§  315), 
the  defamatory  matter,  so  far  as  it  goes,  is  evidence  of  the 
introductory  averments.1  Thus  for  words -spoken  respect- 
ing the  plaintiff's  trade ;  if  the  words  assume  that,  at  the 
tune  they  were  spoken,  the  plaintiff  was  engaged  in  such 
trade,  there  is  no  need  of  proving  that  fact.2  Where  it 
was  to  be  plainly  inferred,  from  the  general  tenor  of  the 
libel,  that  it  was  the  object  of  the  writer  to  represent  the 
plaintiff  as  holding  a  situation  of  trust  and  confidence,  and 
that  he  had  abused  it,  held  that  it  was  sufficient  to  sustain 
the  allegation  in  the  declaration  of  plaintiff's  holding  such 
situation.8  A  declaration  in  libel  stated  as  inducement 
that  the  plaintiff  was  a  surgeon  and  member  of  the  Col- 
lege of  Surgeons,  which  said  college  had  the  power  of  ex- 
pelling persons  guilty  of  unprofessional  conduct,  and  of 
unprofessionally  advertising  themselves  and  their  cures. 
The  libel  was  alleged  to  be  published  of  and  concerning 
the  plaintiff  as  such  surgeon,  and  of  and  concerning  the 


1  Rutherford  v.  Evans,  6  Bing.  451.  In  this  case  the  plaintiff  declared  in  respect 
of  a  libel  upon  him  as  "  Surveyor  of  the  New  England  Company ;  "  held  sufficient  for 
him  to  prove  employment  by  a  company  generally  known  by  that  name. 

2  Hesler  v.  Degant,  3  Ind.  501  ;  Rodebaugh  v.  Hollingsworth,  6  Ind.  339 ;  Berry- 
man  v.  Wise,  4  T.  R.  366.  "Where,  in  an  action  for  a  libel  against  the  plaintiff,  a 
medical  practitioner,  of  and  concerning  him  in  his  said  practice,  no  evidence  was 
offered  of  the  plaintiff  being  of  any  regular  degree,  the  libel  stating  him  to  be  a  quack, 
and  that  certain  persons  had  the  misfortune  to  come  within  his  doctrinal  prescrip- 
tions ;  held,  that  if  the  jury  considered  that  the  libel  spoke  of  him  as  a  medical  prac. 
titioner,  the  case  was  not  withdrawn  from  their  consideration,  although  they  might 
not  give  the  same  damages  as  to  a  person  proved  to  be  a  regular  practitioner.  (Long 
v.  Chubb,  5  C.  &  P.  55.)  Where  the  declaration  alleged  that  there  were  such  states  as 
C.  and  B.,  that  the  plaintiff  and  one  H.  had  been  appointed  minister  plenipotentiary 
and  Consul  General  respectively  from  those  states  to  this  country,  the  libel  on  the  face 
of  it  admitted  that  there  were  such  states ;  and  it  being  proved  at  the  trial  that  the 
plaintiff  had  been  appointed  such  officer  for  the  one  state,  and  H.  for  the  other,  held 
that  the  allegations  were  sufficiently  made  out.     (Yrissari  v.  Clements,  3  Bing.  432.) 

3  Bagnall  v.  Underwood,  11  Price,  621.  In  an  action  for  a  libel  the  defendant 
pleaded  justification,  and  in  his  plea  introduced  certain  passages  from  a  pamphlet 
written  by  plaintiff,  upon  •which  plea  issue  was  joined.  Held,  that  this  was  not 
so  far  an  adoption  of  the  whole  pamphlet  as  true,  as  to  enable  the  plaintiff  to  read 
other  passages  from  it,  to  show  that  the  defendant  was  the  aggressor  in  the  contro- 
versy which  led  to  its  publication.     (Kearney  v.  Gough,  5  Gill  &  Johns.  457.) 


§  387.]  plaintiff's  reputation.  597 

said  college  and  its  said  power.  One  of  the  libels  com- 
plained of  contained  a  statement  that  the  college  had  the 
power  of  expelling  its  members.  The  second  plea  was 
that  the  plaintiff  wTas  not  a  surgeon  and  member  of  the 
College  of  Surgeons  having  the  power  of  expelling  per- 
sons guilty  of  unprofessional  conduct,  and  of  unprofession- 
ally  advertising  themselves  and  their  cures..  Held,  that 
the  traverse  put  in  issue  the  power  of  the  college  to 
expel,  and  that  the  statement  in  the  libel  itself  was  not 
sufficient  evidence  of  such  power.1 

§  387.  It  is  a  much  vexed  question  whether  in  an 
action  for  slander  or  libel  the  plaintiff  may,  in  aggrava- 
tion of  the  damage  he  has  sustained,  introduce  evidence  of 
his  good  reputation  prior  to  the  publication  complained 
of;  on  this  point,  as  upon  all  the  others  relating  to  the 
proceedings  in  an  action,  we  can  do  no  more  than  call 
attention  to  the  decisions  upon  the  subject.  Although  it 
may  be  true  that  in  an  action  for  slander  or  libel  the  repu- 
tation of  the  plaintiff  is  in  issue,  it  is  nevertheless  true 
that,  as  a  general  rule,  the  reputation  of  the  plaintiff  is 
assumed  to  be  good  until  the  contrary  is  shown  (§§  313, 
314)  ;  and  that,  unless  some  blot  upon  the  plaintiff's  repu- 
tation is  set  up  as  a  mitigating  circumstance,  or  his  repu- 
tation is  otherwise  assailed,  he  is  not  permitted  for  any 
purpose  to  introduce  any  evidence  on  the  subject ;  thus 
it  has  been  held  that  evidence  cannot  be  given  of  the 
fairness  of  the  plaintiff's  character  (reputation),  even 
where  a  justification  is  pleaded,  unless  attacked  by  the 
defendant.2     But  held,  also,  that  where  the  general  issue 

1  Wakley  v.  Henley,  18  Law  Jour.  Rep.  426,  Ex. ;  13  Law  Times,  259;  4  Ex.  53. 

2  Shipman  v.  Burrows,  1  Hall,  399 ;  Ilarcourt  v.  Harrison,  1  Hall,  474 ;  Cornwall 
v.  Richardson.  1  Ry.  &  M.  305;  1  C.  &  Y.  106;  Severance  v.  Hilton,  4  Foster,  117; 
McGee  v.  Sodusky,  5  J.  J.  Marsh.  185;  Inman  v.  Foster,  8  Wend.  602;  Dame  v. 
Kenney,  5  Fost.  318;  Petriev.  Rose,  5  Watts  &  Serg  364;  Ilolley  v.  Burgess,  9  Ala. 
728;  Harbison  v.  Shoak,  41  111.  142;  Wright  v.  Shroeder,  2  Curtis,  C.  C.  518  ;  Mar- 
tin v.  Hooker,  7  Coldw.  (Tcnn.)  130;  Chubb  v.  Gsell,  34  Penn.  St.  R.  Ill;  Miles  v. 
Van  Horn,  17  Ind.  215;  Harris  v.  Wilson,  28  Ind.  296;  and  see  Rhodes  v.  James,  7 


598  EVIDENCE    FOR    PLAINTIFF.  [Cll.  XVI. 

only  is  pleaded,  the  plaintiff  may  give  evidence  of  his 
good  character.1  In  slander  for  the  charge  of  perjury, 
where  the  plaintiff  is  permitted  to  give  evidence  of  his 
character  to  protect  himself,  it  is  error  to  confine  him  to 
evidence  of  his  general  character  for  truth  and  veracity.2 
A  witness  called  by  the  plaintiff  in  an  action  of  slander, 
in  support  of  the  plaintiff's  general  character,  stated  that 
some  persons  spoke  veiy  ill  and  some  very  well  of  him. 
Held,  that  the  plaintiff  might  ask  the  witness  in  what 
particulars  some  people  spoke  against  him.3 

§  388.  Where  the  language  is  actionable  and  the  pub- 
lication does  not  appear  to  be  on  any  occasion  which  ren- 
ders it  privileged,  there  the  language  is  presumed  to  be 
false  and  malicious,  i.  e.,  published  without  lawful  excuse.4 


Ala.  574;  Rector  v.  Smith,  11  Iowa,  302;  Tibbs  v.  Brown,  2  Grant's  Cases  (Penn.) 
39;  Fleetcraft  v.  Jenks,  3  Whart.  158;  McCabe  v.  Platter,  6  Blackf.  405;  contra, 
Scott  v.  Pebbles,  2  Sm.  &  M.  546;  Byrket  v.  Monohon,  7  Blackf.  83;  Adams  v.  Law- 
son,  17  Gratt.  250;  Shroyer  v.  Miller,  3  W.  Vir.  158;  Romayne  v.  Duane,  3  Wash. 
C.  C.  246.  It  is  not  competent  for  the  plaintiff  to  make  proof  of  his  good  character, 
in  reply  to  evidence  of  the  truth  of  the  charge.  (Houghtaling  v.  Kilderhouse,  1  N. 
Y.  530 ;  affirming  2  Barb.  149 ;  Matthews  v.  Huntley,  9  N.  Hamp.  146 ;  Springstein 
v.  Field,  Anthon,  185  ;  Her  v.  Cromer,  Wright,  441 ;  Stow  v.  Converse,  3  Conn.  325.) 
Where  the  charge  is  such  that  the  defendant's  evidence  in  justification,  though  in- 
sufficient to  prove  it,  has  a  tendency  to  affect  the  general  character  of  plaintiff,  on 
the  subject  of  the  charge,  he  may  reply  by  evidence  of  general  good  character  in  that 
particular.     (Wright  v.  Shroeder,  2  Curtis,  C.  C.  54S.) 

1  Williams  v.  Greenwade,  3  Dana,  432  ;  King  v.  Waring,  5  Esp.  Cas.  14 ;  Bennett 
v.  Hyde,  6  Conn.  24;  Romayne  'v.  Duane,  3  Wash.  C.  C.  246;  Sample  v.  Wynn, 
Busbee  Law  (X.  Car.)  319;  Howell  v.  Howell,  lOlred.  82;  Burton  v.  March,  6  Jones, 
Law  (N.  Car.)  409. 

2  Steinman  v.  McWilliams,  6  Barr,  170. 

3  Leonard  v.  Allen,  11  Cush.  241. 

4  Fry  v.  Bennett,  5  Sandf.  54;  Estes  v.  Antrobus,  1  Miss.  197;  McKee  v.  Ingalls 
4  Scam.  30;  Parke  v.  Blackiston,  3  Harring.  373  ;  Kinney  v.  Hosea,  Id.  397;  Farley 
v.  Ranck,  3  Watts  &  Serg,  554  ;  Erwin  v.  Sumrow,  1  Hawks,  472  ;  Dexter  v.  Spear,  4 
Mason,  115 :  Bodwell  v.  Osgood,  3  Pick.  379;  Weaver  v.  Hendrick,  30  Miss.  (9  Jones) 
502;  Roberts  v.  Camden,  9  East,  93;  Usher  v.  Severance,  2  App.  9;  Yates  v.  Reed, 
4  Blackf.  463  ;  Gilmer  v.  Ewbank,  13  111.  271  ;  Root  v.  King,  7  Cow.  613;  affirmed, 
4  Wend.  113;  Trabue  v.  Mayo,  3  Dana,  138;  Byrket  v.  Monohon,  7  Blackf.  83;  Hud- 
son v.  Garner,  22  Miss.  (1  Jones)  423  ;  Curtis  v.  Masse}',  6  Gray,  261.  The  jury  cannot 
infer  the  want  of  malice  from  the  fact  that  the  words  were  spoken  only  once,  and  stated 
as  a  common  report.     (Mason  v.  Mason,  4  N".  Hamp.  110.) 


§  389.]  PROOF  OF  MALICE.  599 

But  where  the  publication  is  prima  facie  privileged,  the 
onus  of  proving  malice  in  fact,  i.  e.,  that  the  defendant 
was  actuated  by  motives  of  personal  spite  or  ill-will,  is 
upon  the  plaintiff.  The  existence  or  non-existence  of  this 
intent  is  a  question  for  the  jury.1  "  The  want  of  proof  on 
the  part  of  the  defendant  that  the  slander  was  true,  is  not 
enough  (to  prove  malice),  and  the  plaintiff,  to  maintain  his 
action,  must  show  that  the  charge  was  false,  before  he  can 
ask  the  jury  to  find  the  slander  to  be  malicious." 2 

§  389.  It  is  said  that  falsehood  may  be  evidence  of 
malice.3  But  the  mere  falsity  of  a  publication,  without 
its  being  shown  that  the  publisher  knew  it  to  be  false,  is 
not  per  se  evidence  of  malice.  Thus,  where  the  alleged 
libel  was  a  complaint  made  by  the  defendant  of  the 
incompetency  of  the  plaintiff,  a  surveyor,  who  had  been 


1  Pattison  v.  Jones,  8  B.  &  C.  578  ;  3M.A  R.  101 ;  Bromage  v.  Prosser,  4  B.  &  C. 
247 ;  6  Dow.  <fc  R.  296 ;  Child  v.  Affleck,  9  B.  &  C.  403 ;  Kelly  v.  Partington,  4  B.  & 
Ad.  700;  3  X.  <fcM.  116  ;  Toogood  v.  Spyring,  4  Tyrw.  582  ;  1  C.  M.  &  R.  573  ;  Kine 
v.  Sewell,  3  M,  <fc  W.  297 ;  Wright  v.  Woodgate,  2  C.  M.  <fc  R.  573 ;  Tyrw.  <fe  G.  12 ; 
Liddle  v.  Hodges,  2  Bosw.  537;  Somerville  v.  Hawkins,  10  C.  B.  583;  15  Jurist,  450. 
The  question  of  malice  is  for  the  jury  to  determine,  upon  all  the  facts  and  conversa- 
tions in  connection  with  which  the  words  were  spoken.  (McKee  v.  Ingalls,  4  Scam. 
30 ;  Erwin  v.  Sumrow,  1  Hawks,  472  ;  Smith  v.  Youmans,  Riley,  88  ;  Robinson  v. 
May,  2  Smith,  3 ;  Roberts  v.  Camden,  9  East,  93 ;  Coleman  v.  Playstead,  36  Barb.  26.) 
Where  the  charge  was  that  the  conduct  of  plaintiff  was  "most  disgraceful  snd  dis- 
honest." The  conduct  of  plaintiff  was  of  an  equivocal  nature,  and  might  bona  fide  be 
supposed  by  defendant  to  be  such  as  he  described  it,  held,  not  of  itself,  evidence  of 
malice,  and  the  court  did  right  to  order  a  verdict  for  the  defendant.  (Spill  v.  Maule, 
Law  Rep.  IV.  232,  Ex.)  Where  there  is  evidence  from  which  the  jury  may  find  that 
the  defendant  knew  the  charge  to  be  untrue,  the  defendant  must  disprove  malice.  The 
knowledge  of  its  untruth  is  some  evidence  of  malice.  (Ilartwell  v.  Vesey,  3  Law 
Times,  N.  S.  275.)  In  judging  of  the  malicious  character  of  an  alleged  libel,  the 
jury  may  take  into  consideration  the  whole  publication ;  and  if  it  contains  state- 
ments concerning  other  persons,  which  are  malicious,  the  jury  may  infer  therefrom, 
that  what  is  said  of  the  plaintiff  is  also  malicious.  (Miller  v.  Butler,  6  Cush.  71,  and 
see  Caddy  v.  Barlow,  1  M.  &  R.  275.) 

*  Fowles  v.  Bowen,  30  N.  Y.  26 ;  and  see  Edwards  v.  Chandler,  14  Mich.  471 ; 
Rogers  v.  Clifton,  3  B.  &  P.  587. 

3  Fairman  v.  Ives,  5  B.  &  Aid.  645.  Where  part  of  a  defamatory  publication  is 
shown  to  be  true,  the  falsehood  of  the  other  part  may  be  left  to  the  jury  as  evidence 
of  malice.     (Blagg.  v.  Sturt,  10  Q.  B.  897 ;  8  Law  Times,  135.) 


600  EVIDENCE   FOR   PLAINTIFF.  [Cll.  XVI. 

sent  to  Irini  for  employment,  and  the  innuendo  charged 
that  the  defendant  meant  that  the  plaintiff  was  not  a 
competent  and  skilful  surveyor,  held,  that  evidence  of  the 
general  competency  and  abilities  of  the  plaintiff  was  inad- 
missible to  show  malice.1  Making  a  statement  which  is 
untrue  to  the  knowledge  of  the  party  making  it,  is  evi- 
dence of  malice.2  On  the  trial  of  an  action  for  slander, 
the  plaintiff's  witnesses  proved  that  the  slanderous  state- 
ments were  untrue  in  fact,  but  also  that  they  were  the 
natural  and  reasonable  inferences  from  what  took  place, 
and  which  they  professed  to  describe,  and  that  the  defend- 
ant was  present  at  the  occurrence  which  the  slanderous 
statements  referred  to.  The  judge  ruled  that  the  occa- 
sion was  privileged,  but  that  the  plaintiff  must  have  a 
verdict  unless  the  defendant  proved  that  the  statements 
were  made  without  malice.  Held,  a  right  direction ;  the 
presence  of  the  defendant  being  some  evidence  that  the 
statements  were  made  with  a  knowledge  that  they  were 
untrue.3  To  show  that  the  defendant  knew  of  the  falsity 
of  a  charge  of  theft  published  by  him,  the  plaintiff  was 
permitted  to  prove  that  after  the  time  when  the  theft  was 
alleged  to  have  been  committed  by  plaintiff,  the  defendant 
continued  upon  friendly  terms  with  plaintiff.4 

§  390.  The  plaintiff  may  prove  in  aggravation  of  the 
damages,  his  rank  and  condition  in  society,5  malice  (ill-will) 

1  Brine  v.  Bazalgette,  18  Law  Jour.  Rep.  348,  Ex. ;  Caulfield  v.  Whitworth,  18  Law 
Times,  N.  S.  527. 

2  Fountain  v.  Boodle,  2  Gale  &  D.  455  ;  5  Q.  B.  5 ;  Harris  v.  Thompson,  13  C.  P. 
333 ;  Sexton  v.  Brock,  15  Ark.  345  ;  Farley  v.  Ranck,  3  Watts  <fe  Serg.  554. 

3  Hartwell  v.  Vesey,  9  C.  B.,  N.  S.  882 ;  3  Law  Times,  ]ST.  S.  275.  In  slander,  with 
general  issue  only  pleaded,  the  plaintiff  cannot,  in  the  first  instance,  give  evidence 
tending  to  prove  the  defendant's  knowledge  of  the  falsity  of  the  words  spoken.  (Hart- 
rauft  v.  Hesser,  34  Penn.  St.  R.  117.) 

4  Burton  v.  March,  6  Jones  Law  (N.  Car.)  409. 

6  Tillotson  v.  Cheetham,  3  Johns.  56;  Hosley  v.  Brooks,  20  111.  115  ;  Larned  v. 
Buffington,  3  Mass.  546  ;  Bodwell  v.  Swan,  3  Pick.  376  ;  Howe  v.  Perry,  15  Pick.  506  ; 
Smith  v.  Lovelace,  1  Duvall  (Ky.)  215;  Justice  v  Kerlin,  17  Ind.  588;  Peltier  v. 
Mict,  50  111.  511 ;  contra,  see  Gandy  v.  Humphries,  35  Ala.  617. 


§  390.]  TO    AGGRAVATE    DAMAGES.  601 

in  defendant  (§  392,  post),  that  defendant  knew  the  charge 
to  be  false,1  other  publications  of  words  not  actionable,2  or 
which  are  actionable,3  if,  as  is  said,  the  right  of  action  on 
such  words  is  barred  by  the  statute  of  limitations.4  Sub- 
sequent defamatory  remarks  upon  the  plaintiff5  and  after 
the  commencement  of  the  action.6  In  slander  of  a  physi- 
cian in  his  profession,  the  currency  of  the  slanderous  report 
in  the  place  of  his  practice,  following  the  utterance  of  the ' 
same  by  the  defendant,  may  be  given  in  evidence,  as  well 
as  the  effect  of  such  report  upon  the  professional  gains  of 
the  plaintiff,  in  aggravation  of  damages,  without  strict 
proof  connecting  the  current  report  with  the  slander  of 

1  Bullock  v.  Cloyes,  4  Verm.  304;  Stow  v.  Converse,  3  Conn.  325;  ante,  §  389. 

2  Allenswortk  v.  Coleman,  5  Dana,  315.  Slanderous  words,  not  laid  in  the  decla- 
ration, cannot  be  proved  in  aggravation  of  damages.  (Vincent  v.  Dixon,  5  Ind.  (Por- 
ter), 270;  Schenck  v.  Schenck,  1  Spencer,  208  ;  Botelar  v.  Bell,  1  Md.  173  ;  Medaugk 
v.  Wright,  27  Ind.  137.) 

3  Lee  v.  Huson,  Peake,  166;  Bond  v.  Douglass,  7  C.  &  P.  626;  but  see  Cook  v. 
Field,  3  Esp.  133. 

4  Titus  v.  Sumner,  44  X.  Y.  266 ;  Breckett  v.  Davis,  21  Pick.  404 ;  Throgmorton  v. 
Davis,  4  Blackf.  174.  But  words  not  laid  in  the  declaration  cannot  be  proved  to 
make  the  words  laid  actionable.  (Jones  v.  Jones,  1  Jones  Law  (N.  Car.)  495.)  And 
where  words  actionable  in  themselves,  and  not  set  out  in  the  declaration,  are  admitted 
in  evidence  to  prove  malice,  the  court  must  caution  the  jury  that  they  are  not  to 
increase  the  damages  on  account  of  such  words.  (Letton  v.  Young,  2  Met.  (Ky.)  558 ; 
Barrett  v.  Long,  8  Ir.  Law  Rep.  331 ;  Scott  v.  McKinnish,  15  Ala.  662;  Burson  v. 
Edwards,  1  Carter  (Ind.)  164.) 

6  Chubb  v.  Westley,  6  C.  &  P.  436  ;  post,  §  394.  Where  the  words  complained  of 
are  unambiguous,  held,  that  proof  of  the  publication  subsequently  of  other  words  of 
the  same  import,  is  inadmissible.  (Pearce  v.  Ormsby,  1  M.  <fe  Rob.  455  ;  Symmons  v. 
Blake,  Id.  447.) 

6  Post,  §  395;  Barwell  v.  Adkins,  2  Sc.  N.  S.  11 ;  Hesler  v.  Degant,  3  Ind.  501  ; 
Williams  v.  Harrison,  3  Miss.  411 ;  Hutch  v.  Potter,  2  Gilman,  75;  Kean  v.  McLaugh- 
lin,, 2  S.  &  R.  469 ;  contra,  McGlenery  v.  Keller,  3  Blackf.  488. 

In  an  action  for  a  libel  in  a  weekly  periodical  publication,  a  witness  was  allowed 
to  prove  a  purchase  of  a  copy  after  the  action  brought.  (Plunkett  v.  Cobbct,  2  Selw. 
N.  P.  1042;  2  Esp.  136.)  If  a  defendant,  after  action  brought,  issues  a  new  publica- 
tion, mingling  the  matter  for  which  he  has  been  sued  with  new  libellous  matter,  he 
cannot  call  upon  the  court  tja  analyze  the  publication,  and  separate  what  refers  to  the 
former  libel  from  the  new  slanderous  matters  it  may  contain,  but  the  whole  may  be 
read  in  evidence.  (Schenck  v.  Schenck,  1  Spencer,  208.)  As  to  proof  of  repetition 
of  the  slander  not  being  admissible  to  aggravate  the  damages,  see  Burson  v.  Edwards, 
1  Carter  (Ind.)  164;  Shortley  v.  Miller,  1  Smith,  395;  Lanter  v.  McEwen,  8  Blackf. 
495  ;  Forbes  v.  Myers,  Id.  74. 

39 


602  EVIDENCE   FOE   PLAXNTIFF.  [Ch.  XVI. 

the  defendant ;  the  fact  of  such  connection  being  for  the 
jury,  and  not  for  the  court  to  pass  upon.1  A  libel  charged 
M.  with  kidnapping  a  free  colored  man,  and  referred  to 
two  numbers  of  a  newspaper  which  showed  the  transac- 
tion in  full ;  Held,  an  aggravation  of  the  libeP  If  the 
publication  was  in  a  newspaper,  the  plaintiff  may,  to  ag- 
gravate the  damages,  prove  the  extent  of  the  circulation 
of  that  paper  at  the  time  of  the  publication  of  the  alleged 
libellous  matter,  and  to  prove  this,  may  give  a  copy  of  the 
defendant's  paper  in  evidence  containing  a  statement  of 
the  amount  of  circulation.3 

§  391.  The  plaintiff,  to  aggravate  damages,  cannot 
prove  the  defendant's  wealth,4  nor  that  it  was  currently 
reported  that  defendant  had  charged  the  plaintiff  with  the 
crime  mentioned  in  the  declaration,3  nor  that  the  plaintiff 
had  suffered  distress  of  mind.6 

§  392.  The  plaintiff  may  prove  express  malice — i.  e.y 
ill-will  or  hostility  on  the  part  of  the  defendant  towards 
the  plaintiff — either  to  aggravate  the  damages 7  or  to  de- 

1  Rice  v.  Cottrell,  5  R.  I.  340.  In  Hotchkiss  v.  Lothrop,  1  Johns.  286;  Dole  v. 
Lyon,  10  Johns.  447,  doubted  if  defendant  being  indemnified  was  not  admissible  in 
aggravation.     Semble  not,  as  indemnity  void.     Ante,  §  305. 

2  Nash  v.  Benedict,  25  Wend.  645. 

3  Fry  v.  Bennett,  28  N.  Y.  330. 

4  Myers  v.  Malcolm,  6  Hill,  292  ;  Ware  v.  Curtledge,  24  Ala.  622  ;  Palmer  v.  Has- 
kins,  28  Barb.  90 ;  Morris  v.  Barker,  4  Harring.  520 ;  but  see  Fry  v.  Bennett,  4  Duer, 
247 ;  Bennett  v.  Hyde,  6  Conn.  24 ;  Case  v.  Marks,  20  Conn.  248 ;  Adcock  v.  Marsh, 
8  Ired.  360 ;  Karney  v.  Paisley,  13  Iowa  (5  With. )  89 ;  Humphries  v.  Parker,  52  Maine, 
502;  Hosley  v.  Brooks,  20  111.  115;  Harbison  v.  Shook,  41  111.  142;  Lewis  v.  Chap- 
man, 19  Barb.  252;  Kunkel  v.  Markell,  26  Md.  391. 

6  Leonard  v.  Allen,  11  Cush.  (Mass.)  241. 

8  Terwilliger  v.  Wands,  17  N.  Y.  54 ;  Wilson  v.  Goit,  Id.  442 ;  contra,  Swift  v. 
Dickerman,  31  Conn.  285  ;  ante,  note,  p.  97. 

7  Fry  v.  Bennett,  28  K  Y.  330 ;  True  v.  Plumley,  36  Maine  (1  Heath),  466 ;  Saw- 
yer v.  Hopkins,  9  Shep.  268;  Jellison  v.  Goodwin,  43  Maine,  287;  2  Greenl.  Ev. 
§  418;  Spilling  v.  Carson,  27  Md.  175.  Proof  of  malice  in  Connecticut.  (Moore  v. 
Stevenson,  27  Conn.  14.)  Until  some  of  the  actionable  words  laid  have  been 
proved,  evidence  of  the  quo  animo  of  the  defendant  is  inadmissible.  (Abrams  v.  Smith,. 
8  Blackf.  95.) 


§  392.]  proof  or  malice.  603 

feat  a  defense  of  privileged  publication.1  To  establish 
such  malice,  the  plaintiff  may,  it  is  held,  in  some  cases, 
give  in  evidence  other  publications  by  the  defendant  of 
defamatory  language  concerning  the  plaintiff,  whether  it 
be  the  same  as  or  other  than  the  language  declared  upon 
if  of  the  like  import.-  But  the  better  opinion  appears  to 
be,  that  evidence  of  a  charge  of  a  different  nature,  and  at 
a  different  time  from  that  alleg-ed  in  the  declaration,  is 
inadmissible  to  prove  malice  or  for  any  purpose.3  This  is 
in  effect  only  another  form  of  the  rule  that  actionable 
words  not  counted  upon  cannot  be  given  in  evidence,4 
unless  a  suit  upon  them  is  barred  by  the  statute  of  liin- 


1  Baboneau  v.  Farrell,  1 5  C.  B.  360 ;  24  Law  Jour.  Rep.  N.  S.  9,  C.  P. ;  1  Jur.  N. 
S.  14  ;  Littlejohn  v.  Greeley,  13  Abb.  Pra.  Rep.  41 ;  Suydam  v.  Moffat,  1  Sandf.  459  ; 
Root  v.  King.  4  Wend.  113;  Garrett  v.  Dickerson,  19  Md.  418;  see  Holt  v.  Parsons, 
23  Texas,  9.  It  is  no  objection  to  a  recovery  for  the  slanderous  words  charged,  that 
the  publication  of  the  same  words  has  been  proved  against  the  defendant  in  a  former 
action  between  the  same  parties,  for  the  purpose  of  proving  malice.  (Swift  v.  Dick- 
erman,  31  Conn.  285;  Campbell  v.  Butts,  3  N.  Y.  173.) 

2  Burson  v.  Edwards,  1  Carter  (Ind.)  164;  Pearson  v.  Le  Maitre,  6  Sc.  N.  S.  607  ; 
5  Man.  &  G.  700;  Delegal  v.  Highley,  8  C  &  P.  444 ;  Elliott  v.  Boyles,  31  Penn.  St. 
R.  65;  The  State  v.  Jeandell,  5  Harring.  475;  Price  v.  Wall,  2  Quart.  Law  Jour.  63  ; 
Cavanagh  v.  Austin,  42  Verm.  576  ;  Johnson  v.  Bi'own,  57  Barb.  118.  Proof  may  be 
given  of  the  publication  of  other  words  of  like  import.  (Thompson  v.  Bowers,  1  Doug. 
321;  Stearns  v.  Cox,  17  Ohio,  590;  Taylor  v.  Moran,  4  Mete.  (Ky.)  127.)  Extracts 
from  a  newspaper,  being  separate  and  independent  libels  not  declared  on,  may  be 
offered  in  evidence  to  prove  express  malice,  or  as  showing  the  quo  ammo  ;  such  words 
cannot  be  made  the  foundation  of  a  recovery  of  damages  for  an  injury  the  plaintiff 
may  have  suffered  from  them,  but  can  only  affect  the  damages  by  showing  the  degree 
of  malice.  (Van  Derveer  v.  Sutphin,  5  Ohio  (N.  S.)  293;  Markham  v.  Russell,  12 
Allen  (Mass.)  573.) 

3  Howard  v.  Sexton,  4  N.  Y.  157.  Although  in  slander,  the  plaintiff,  to  prove  the 
animus,  may  show'  a  repetition  of  the  words,  or  of  such  as  show  the  same  train  of 
thought,  yet  he  cannot  give  in  evidence  other  words  which  may  be  the  subject  of  another 
action  ;  held,  also,  that  it  appearing  that  the  plaintiff  had  recovered  in  another  action 
against  the  defendant's  son,  what  passed  after  the  verdict,  by  way  of  proposal  to, 
compromise  the  second  action,  was  admissible  to  show  that  it  was  not  vexatiously  pros- 
ecuted.    (Deffries  v.  Davies,  7  C  <fe  P.  112.) 

*  Rundell  v.  Butler,  7  Barb.  260 ;  Mead  v.  Daubigny,  Peake,  125  ;  and  see  Camp- 
bell v.  Butts,  3  N.  Y.  173  ;  Keenholts  v.  Becker,  3  Denio,  346 ;  Thomas  v.  Croswell,  7 
Johns.  264 ;  contra,  Duvall  v.  Griffith,  2  Har.  &  Gil.  30 ;  Scott  v.  McKinniah,  15  Ala. 
662;  Long  v.  Chubb,  5  C.  &  P.  55  ;  Barton  v.  Brand,  3  Green,  2  IS  ;  Brittain  v.  Allen, 
2Dev.  120;  3  Dev.  167. 


604  EVIDENCE    FOR    PLAINTIFF.  [CL  XVI. 

itations,1  and  their  admission,  where  the  statute  has  run, 
is  opposed  to  principle,  as  it  in  effect  restores  a  cause  of 
action  which  has  been  taken  away  by  the  law.2  It  seems 
clear  that  a  repetition  by  the  defendant  of  the  defamatory 
matter  complained  of  is  admissible  to  prove  malice  in  fact ; 
and  it  is  said  that  within  this  rule  any  act  or  language  of 
the  defendant  tending  to  show  malice  beyond  that  implied 
by  the  original  publication,  the  subject  of  the  action,  may 
be  proved.3 

§  393.  In  an  action  for  libel,  the  defendant  pleaded 
the  general  issue,  and  also  a  plea  under  the  6th  and  7th 
Vict.  c.  96,  denying  actual  malice,  and  stating  an  apology. 
On  the  trial,  the  plaintiff,  in  order  to  prove  malice,  ten- 
dered in  evidence  other  publications  of  the  defendant, 
going  back  above  six  years  before  the  publication  com- 
plained of,  held,  that  these  publications  were  admissible 
in  evidence ; 4  but  the  court  should,  in  such  a  case  call 
attention  to  the  distance  of  time  elapsed  before  the  subse- 
quent statements,  and  that  those  statements  might  have 
referred  to  some  other  and  subsequent  matter,  so  as  not 
to  show  malice  at  the  time  of  the  publication  complained 
of.5 

§  394.  A  plaintiff  may,  to  prove  malice,  give  evidence 

1  Innian  v.  Foster,  8  Wend.  602  ;  Throgmorton  v.  Davis,  4  Blackf.  174 ;  Flaming- 
ham  v.  Boucher,  Wright,  746 ;  see,  also,  Lincoln  v.  Chrisman,  10  Leigh,  338.  In 
an  action  of  slander  for  words  imputing  perjury,  an  affidavit  of  the  defendant,  on 
which  an  indictment  had  been  preferred,  and  which  had  been  made  so  long  before  as 
to  be  barred  by  the  statute  of  limitations,  charging  the  plaintiff  with  the  same  per- 
jury set  out  in  the  declaration,  is  admissible  in  evidence,  as  proof  of  the  repetition  of 
the  same  words  in  a  different  form,  and  with  more  deliberation,  and  to  show  the  quo 
animo.     (Randall  v,  Holsenbake,  3  Hill  (S.  Car.)  1T5.) 

2  Root  v.  Lowndes,  6  Hill,  518. 

3  Fry  v.  Bennett,  28  N.  Y.  328  ;  Johnson  v.  Brown,  57  Barb,  118.  Damages  recov- 
ered for  previous  slander  may  be  given  in  evidence  to  show  mahce.  (Symmons  v. 
Blake,  1  M.  &  Rob.  477.) 

4  Barrett  v.  Long,  3  Ho.  of  Lords  Cas.  395  ;  8  Ir.  Law  Rep.  331. 

6  Hemmings  v.  Gasson,  36  Law  Jour.  Rep.  252,  Q.  B. ;   1  El.  B.  &  E.  346. 


§  395.]  PROOF  OF  MALICE.  605 

of  a  publication  by  the  defendant  made  subsequently  to 
the  publication  declared  upon,  when  the  subsequent  pub- 
lication is  of  a  like  import  with  that  declared  upon,  or 
relating  thereto,  or  is  not  actionable  of  itself,  or  explains 
any  ambiguity  in  the  matter  declared  upon.1  And  in  an 
action  for  words  imputing  perjury,  the  plaintiff  was  al- 
lowed, for  the  purpose  of  showing  the  quo  ani?no,  to  give 
in  evidence  an  indictment  subsequently  preferred  by  the 
defendant  against  him,  and  which  was  ignored.2  But  in 
an  action  of  slander,  for  charging  the  plaintiff  with  stealing 
two  beds,  it  was  held  not  competent  for  the  plaintiff,  for 
the  purpose  of  showing  malice,  to  prove  that  the  defend- 
ant subsequently  entered  a  complaint  against  him,  before 
a  magistrate,  for  stealing  a  lot  of  wood  and  old  iron ;  first, 
because  the  words  used  in  the  complaint  did  not  relate  to 
the  charge  which  was  the  subject  of  the  action;  and  sec- 
ondly, because  such  using  of  the  words  was  a  proceeding 
in  a  course  of  justice,  before  a  magistrate  having  jurisdic- 
tion of  the  supposed  offense.3 

§  395.  The  plaintiff  may,  it  seems,  to  prove  malice, 
give  evidence  of  defamatory  publications  by  the  defend- 
ant concerning  him  after  the  commencement  of  the  action ; 
but  the  authorities  are  conflicting.4  In  general,  what  oc- 
curs after  the  commencement  of  the  action  is  inadmissible ; 

1  Pearce  v.  Ormsby,  1  M.  &  Rob.  455  ;  Mix  v.  Woodward,  12  Conn.  262;  Williams 
v.  Miner,  18  Id.  464  ;  Symmons  v.  Blake,  1  M.  &  Rob.  477;  Baldwin  v.  Soule,  6  Gray, 
321;  Shock  v.  McChesney,  2  Yeates,  473;  Smith  v.  Wyman,  4  Shep.  13;  Howard  v. 
Sexton,  4  N.  Y.  157;  Kendall  v.  Stone,  2  Sandf.  269;  Kennedy  v.  Gifford,  19  Wend. 
296  ;  Miller  v.  Kerr,  2  McCord,  285 ;  Pearson  v.  LeMaitre,  6  Sc.  N.  S.  607  ;  5  Man.  & 
G.  700 ;  Chubb  v.  Westley,  6  C.  &  P.  436 ;  Shrimper  v.  Heilman,  24  Iowa,  505 ;  Rob- 
bins  v.  Fletcher,  101  Mass.  115. 

3  Tate  v.  Humphrey,  2  Camp.  73,  n. 

8  Watson  v.  Moore,  2  Cush.  133. 

*  Ante,  note  6,  p.  601 ;  nowell  v.  Cheatem,  Cooke,  247  ;  Scott  v.  Montsinger,  2  Blackf. 
454;  Teagle  v.  Deboy,  8  Blackf.  134;  Warne  v.  Chadwell,  2  Stark.  457.  Slanderous 
words,  spoken  since  the  suit  was  commenced,  are  admissible  in  evidence  to  show  the 
sense  in  which  the  words  laid  were  spoken.  (Carter  v.  M'Dowell,  "Wright,  100;  and 
M'Donald  v.  Murchison,  1  Dev.  7.) 


606  EVIDENCE   FOR   PLAINTIFF.  [CL  XVI. 

but  where  the  words  published  led  to  the  arrest  of  the 
plaintiff  after  the  commencement  of  his  action,  it  was  held 
that  the  defendant  might  have  excluded  all  evidence  of 
what  took  place  after  the  commencement  of  the  action, 
but  having  consented  to  its  admission,  the  jury  were  at 
liberty  to  take  it  into  consideration.1 

§  396.  Where  evidence  of  another  or  other  publica- 
tions than  that  declared  upon  is  or  are  admitted  for  the 
purpose  of  showing  malice  only,  the  jury  should  be  in- 
structed that  it  is  admitted  for  that  purpose  alone,  and 
that  they  are  not  to  give  damages  for  other  than  the  words 
charged  in  the  declaration.2  An  instruction  was  given  to 
the  jury  to  the  effect  that  a  letter  written  by  defendant 
and  given  in  evidence  by  the  plaintiff,  was  admissible 
only  to  show  malice,  and  for  no  other  purpose,  and  that 
they  had  a  right  to  award  such  damages  to  plaintiffs  as 
they  thought  them  entitled  to  under  all  the  circumstances 
proved  in  the  case ;  held,  that  the  caution  to  the  jury  in 
respect  to  the  effect  of  the  letter  was  not  sufficient.3 

§  397.  Evidence  tending  to  make  out  an  admission  by 
the  defendant,  subsequently  to  the  speaking  of  the  words, 
of  a  dispute  existing  between  him  and  the  plaintiff  before 
the  speaking  of  the  words,  about  a  sum  of  money  claimed 
to  be  due  from  the  defendant  to  the  plaintiff,  is  admissible 
to  show  express  malice.4  So  to  prove  malice  plaintiff  may 
give  evidence  tending  to  show  that  defendant  coveted  the 
possession  of  plaintiff's  land,  and  hoped  by  defaming  him 
to  compel  him  to  remove ; 5  but  he  cannot  show  that 
defendant   had,   by   promises  of  reward   and   threats   of 


1  Goslin  v.  Corry,  8  Sc.  N.  S.  21 ;  7  Man.  &  G.  343. 

2  Scott  v,  McKinnish,  15  Ala.  662;  Barrett  v.  Long,  8  Ir.  Law  Rep.  331. 
8  Letton  v.  Young,  2  Mete.  (Ky.)  558. 

4  Simpson  v.  Robinson,  18  Law  Jour.  Rep.  73,  Q.  B.  ;  13  Jur.  187. 
*  Morgan  v.  Livingston,  2  Rich.  573, 


§§  398-9.]  proof  or  malice.  607 

vengeance,    endeavored   to    prevent    the    attendance    of 
witnesses  for  plaintiff.1 

§  398.  In  an  action  of  slander  for  charging:  an  infant 
with  larceny,  evidence  of  a  previous  quarrel  between  the 
defendant  and  the  plaintiff's  father  and  next  friend,  is 
inadmissible  to  prove  malice  in  the  defendant  towards  the 
plaintiff.'2  In  an  action  against  the  publisher  of  the 
magazine  in  which  the  libel  was  published,  evidence  of 
personal  malice  of  the  editor  against  the  plaintiff  was 
held  inadmissible.3  So  the  refusal  of  the  editor  of  a 
newspaper  to  publish  a  retraction  of  the  libel  was  held 
not  to  be  evidence  of  malice  against  the  publisher  of  such 
newspaper.4  On  the  trial  of  an  action  for  a  libel  in  a 
newspaper,  it  appeared  that  the  defendant  employed  F.  to 
print  the  newspaper  in  question,  and  that  S.,  one  of  F.'s 
workmen,  had  set  ?qi  the  article  in  the  absence  of  the 
defendant  and  of  the  editor  of  the  paper,  held  that  the 
plaintiff  could  not  ask  a  witness  if  he  heard  S.  express 
any  ill-will  towards  the  plaintiff.5  In  the  same  case,  it 
was  held  that  the  plaintiff  might  give  in  evidence  an 
article  published  in  a  subsequent  number  of  the  same 
newspaper,  with  the  defendant's  knowledge  and  consent, 
justifying  the  publication  of  the  article  complained  of  as 
libellous,  though  such  article  was  not  published  until  after 
the  action  was  commenced. 

§  399.  The  language  itself  whether  oral  or  written, 
may  be  evidence  of  malice,  and  where  the  occasion  renders 
the  publication  prima  facie  privileged,  the  jury  may  take 
the  language  into  consideration  to  determine  the  intent 
with  which  the  publication  was  made.6 

1  Eirkaldie  v.  Paige,  1*7  Verm.  256. 

2  York  v.  Pease,  2  Gray,  282. 

3  Robertson  v.  Wylde,  2  M.  &  Rob.  101. 

*  Edsall  v.  Brooks,  2  Robertson,  414  ;  33  How.  Pra.  Rep.  191. 

6  Goodrich  v.  Stone,  11  Mete.  486. 

«  Wright  v.  Woodgate,  2  C.  M.  &  R.   573;  Tyrw.  <fe  G.  12;  Gilpin  v.  Fowler,  9 


608  EVIDENCE   FOR   PLAINTIFF  [Ch.  XVI. 

§  400.  Interposing  a  justification  which  the  defendant 
either  abandons  or  fails  to  prove,  may  be  regarded  as  an 
aggravation  of  the  original  wrong,  and  may  be  taken  into 
consideration  by  the  jury  in  estimating  damages.1  It  is 
evidence  of  malice,2  and  of  continued  malice.3  A  justifi- 
cation on  the  ground  of  truth  was  held  not  be  an  asrgrava- 
tion  of  the  charge,  where  the  defendant  had  reason  to 
believe  the  charge  to  be  true,4  or  where  the  plea  of  truth 
was  so  defective  that  no  judgment  could  have  been  entered 

Ex.  615  ;  Cooke  v.  Wildes,  5  El.  &  El.  328  ;  Jackson  v.  Hopperton,  16  Com.  B.  N.  S. 
829 ;  Spill  v.  Maule,  Law  Rep.  IV.  Ex.  232 ;  ante  §  288,  and  last  clause  of  §  241,  also 
Swadling  v.  Tarpley,  in  Appendix  post.  Expressions  in  excess  of  what  the  occasion 
requires  do  not  constitute  malice,  but  are  merely  evidence  of  malice.  (Buckley  v. 
Kiernan,  7  Ir.  C.  L.  75  ;  Sutton  v.  Plumridge.  16  Law  Times,  N.  S.  741;  Liddle  v. 
Hodges,  3  Bosw.  537;  18  N.  Y.  48;  Howard  v.  Sexton,  4  N.  Y.  161 ;  Fero  v.  Ruscoe, 
Id.  162;  Garrett  v.  Dickerson,  19  Md.  418;  Hotchkiss  v.  Porter,  30  Conn.  414; 
White  v.  Nicholls,  3  How.  U.  S.  Rep.  266;  The  case  of  Tuson  v.  Evans,  12  Adol.  & 
El.  733,  said  to  be  overruled.) 

1  Fero  v.  Ruscoe,  4  N.  Y.  162 ;  Wilson  v.  Robinson,  14  Law  Jour.  Rep.  196,  Q. 
B. ;  9  Jurist,  726 ;  Lee  v.  Robertson,  1  Stew.  138 ;  Richardson  v.  Roberts,  23  Geo. 
215;  Pool  v.  Devers,  30  Ala.  672;  Updegrove  v.  Zimmerman,  13  Penn.  St.  R.  (1 
Harris),  619;  Gorman  v.  Sutton,  32  Id.  247;  Doss  v.  Jones,  5  How.  (Miss.),  158; 
Robinson  v.  Drummond,  24  Ala.  74 ;  Beasley  v.  Meigs,  16  111.  139 ;  Spencer  v. 
McMaster,  Id.  405  ;  Smith  v.  Wyrnan,  4  Shep.  13  ;  contra,  Murphy  v.  Stout,  1  Smith, 
256;  Shortley  v.  Miller,  Id.  395;  Shank  v.  Case,  1  Carter  (Ind.),  170:  Millison  v. 
Sutton,  Id.  508;  Starr  v.  Harrington,  Id.  515  ;  and  see  Swails  v.  Butcher,  2  Carter, 
84;  Sloan  v.  Petrie,  15  111.  425;  Thomas  v.  Dunaway,  30  111.  373;  Rayner  v. 
Kjnney,  14  Obio,  N.  S.  283;  Pallet  v.  Sargent.  36  N.  Hamp.  496;  Cavanagh  v. 
Austin,  42  Verm.  576. 

The  judge,  in  addressing  the  jury,  commented  upon  the  fact  that  the  defendant 
had  refused,  at  the  trial,  to  make  an  apology  and  withdraw  his  justification,  though 
he  gave  no  evidence  in  support  of  it,  as  evidence  of  malice.  Held  no  misdirection. 
(Simpson  v.  Robinson,  11  Law  Times,  266;  18  Law  Jour.  Rep.  73,  Q.  B. ;  13  Jur. 
187.)  That  the  defendant  procured  evidence  to  prove  the  truth  of  his  charges,  and 
then  declined  to  plead  in  justification,  may  be  properly  referred  to  the  jury  on  the 
question  of  malice,  though  not  on  that  of  damages.  (Bodwell  v.  Osgood.  3  Pick. 
379.)  The  defendant  endeavoring  to  obtain  testimony  of  the  truth  of  the  alleged 
defamatory  matter,  is  not  of  itself  evidence  of  malice.  (Ormsby  v.  Douglass,  37 
If.  Y.  482.)  Nor  is  the  fact  of  pleading  a  justification,  of  itself,  evidence  of  malice. 
(Caulfield  v.  Whitworth,  18  Law  Times,  N.  S.  527.)  Efforts  of  defendant  to  have 
plaintiff  indicted,  may  be  shown  to  aggravate  damages.  (Harbison  v.  Shook,  41  111. 
142.) 

2  Jackson  v.  Stetson,  15  Mass.  48;  Alderman  v.  French,  1  Pick.  1. 

3  Wilson  v.  Nations,  5  Yerg.  211. 

4  Byrket  v.  Monohon,  7  Blackf.  83  ;  and  see  Shortley  v.  Miller,  1  Smith,  395. 


§  401.]  m  eeply.  609 

upon  it,1  or  where  the  plea  was  withdrawn  before  the  trial.2 
Where  in  an  action  for  libel  defendant  pleaded  not  guilty 
and  a  justification ;  he  offered  no  proof  of  the  justification, 
but  gave  evidence  to  show  that  the  publication  was  made 
under  circumstances  rendering  it  a  privileged  communica- 
tion ;  held,  that  the  jury,  in  forming  their  opinion  (upon 
the  first  issue,  whether  or  not  the  communication  was 
privileged),  ought  not  to  take  into  consideration  the  fact 
that  the  justification  had  been  pleaded  and  abandoned..3 

§  401.  In  an  action  for  a  libel,  the  defendant,  to  justify 
a  charge  made  by  him  against  the  plaintiff  of  unfairness 
and  partiality  as  collector  of  the  United  States  taxes, 
proved  that  the  plaintiff  had  refused  to  receive  bills  of  a 
certain  bank  in  payment  of  a  tax.  To  rebut  this  evidence, 
the  plaintiff  offered  a  letter  of  instructions  to  him  from 
the  commissioner  of  the  revenue,  designating  the  descrip- 
tion of  the  bills  which  the  plaintiff  should  receive.  It 
was  held  that  such  evidence  was  admissible  as  negativing 
the  charge  of  unfairness  and  partiality  in  the  plaintiff's 
conduct.4  It  was  in  the  same  case  held  that  the  plaintiff 
could  not  repel  a  charge  of  partial  and  unjust  conduct, 
in  the  exaction  of  commissions  not  authorized  by  law,  by 
showing  that  such  commissions  were  taken  honestly, 
through  a  mistaken  construction  of  the  law. 

1  Braden  v.  "Walker,  8  Humph.  34. 

8  Gilmore  v.  Borders,  2  How.  (Miss.),  824. 

8  Wilson  v.  Robinson,  1  Q.  B.  68;  9  Jurist,  726;  14  Law  Jour.  N.  S.  196,  Q.  B. 

4  Stow  v.  Converse,  3  Conn.  325. 


CHAPTER  XVII. 


EVIDENCE   FOE   DEFENDANT. 


What  evidence  is  admissible  depends  upon  what  plea  or  an- 
swer is  interposed —  What  may  be  proved  under  the  gen- 
eral issue — Evidence  to  support  a  justification — Plain- 
tiff's  reputation  in  issue — Inquiry  limited  to  plaintiff"1  s 
general  reputation — And  to  his  imputation  prior  to  the 
publication  complained  of — Truth  in  mitigation — Con- 
duct of  plaintiff  leading  to  belief  in  truth — Report  or 
suspicion  of  plaintiffs  guilt  in  mitigation — Plaintiff's 
standing  and  condition  in  society — Prior  or  subsequent 
declarations  of  defendant — Heat  and  passion — Previous 
publications  by  the  plaintiff — Controversies  between 
plaintiff  and  defendant  prior  to  the  publication — Cir- 
cumstances not  admissible  in  mitigation. 

§  402.  What  evidence  the  defendant  may  give  depends 
upon  what  plea  or  answer  he  has  interposed.1     His  proof 


1  "We  have  already  (note  p.  120,  ante)  referred  to  some  decisions  on  the  proof  of 
intent,  we  here  add  some  others  which  have  come  to  our  knowledge  since  the 
previous  note  was  written.  In  Smith  v.  Higgins,  82  Mass.  (16  Gray)  251,  it  is  said  : 
In  slander  the  good  faith  of  the  defendant  and  the  feelings  which  prompted  him  to 
speak  the  words  alleged  in  the  declaration,  being  properly  in  issue,  he  is  competent 
to  testify  concerning  them.  The  testimony  of  the  defendant  concerning  his  motive  in 
speaking  the  words,  his  belief  in  their  truth,  and  the  absence  of  ill-will  or  malice 
towards  the  plaintiff  is  admissible.  In  White  v.  Tyrrell,  5  Ir.  L.  R.  N.  S.  477.  the 
defendant  having  written  a  letter,  was  permitted  to  be  asked  the  question  whether  in 
writing  the  letter  he  had  the  intention  of  provoking  a  challenge.  In  Cortland  Co.  v. 
Herkimer  Co.,  44  N.  Y.  22,  the  defendant  as  a  witness  was  allowed  to  answer  the 
question,  "  Did  you  send  (the  pauper)  from  the  County  of  Herkimer,  in  good  faith  ?" 
In  Cowdrey  v.  Coit,  44  N.  Y.  382,  held  not  proper  to  ask  a  witness :  What  would  you 
have  done  with  the  proceeds  if  you  had  effected  a  sale  ?  In  Dillon  v.  Anderson,  43 
N.  Y.  236,  the  action  was  on  contract,  defense,  that  contract  was  made  jointly  with  H. 
who  was  not  made  a  party.  The  contract  was  in  writing  and  signed  by  defendant. 
II.  was  named  in  the  body  of  the  paper  as  a  contracting  party,  but  it  was  not  signed 


§  403.]  UNDER    GENERAL     ISSUE.  611 

must  correspond  with  his  plea.  Under  the  common  law 
system  of  pleading  and  procedure,  many  matters  of 
defense  might  be  given  in  evidence  under  the  general  issue 
which  now  require  to  be  specially  pleaded.  So,  too, 
under  the  common  law  system,  mitigating  circumstances 
could  not  be  pleaded,  but  were  admitted  in  evidence 
under  the  general  issue ;  and  this  is  still  the  rule  where 
there  is  not  any  statutory  provision  on  the  subject.  In 
New  York  and  some  other  States,  provision  is  made  by 
statute  allowing  the  defendant,  in  actions  for  slander  and 
libel,  to  set  forth  in  his  answer  the  mitigating  circumstances 
he  will  prove  upon  the  trial.  Some  of  the  effects  of  these 
statutory  provisions  have  already  been  referred  to  under 
the  head  of  Pleading ;  other  effects  will  he  noticed  here- 
after. 

§  403.  Under  the  general  issue  the  defendant  was  at 


by  him ;  on  the  trial,  the  defendant  was  called  as  a  witness  on  his  own  behalf  and 
asked  by  his  counsel,  "  Did  you  intend  to  make  an  individual  contract  ? "  The 
question  was  disallowed,  and  held  in  the  court  of  appeals.  "  The  testimony  called 
for  was  not  proper.  There  are  authorities  that  a  witness  may  be  asked  his  motive 
or  intent  in  doing  an  act.  *  *  We  think  that  they  hold  no  more  than  this ;  that 
where  the  doing  the  act  is  not  disputed,  but  is  affirmed,  and  whether  the  act  shall  be 
valid  or  invalid,  hangs  upon  the  intent  with  which  it  was  done,  which  intent  from  its 
nature  would  be  formed  and  held  without  avowal,  then  he  upon  whom  the  intent 
is  charged  may  testify  whether  he  secretly  held  such  intent  when  he  did  the  act. 
Thus  an  insolvent  assignor  in  trust,  charged  with  the  fraudulent  intent  to  hinder  and 
delay  creditors,  may  be  called  in  support  of  the  deed  of  trust,  and  may  say,  whether, 
when  he  made  it,  he  had  no  fraudulent  purpose  ;  and  one  sued  for  a  malicious  prosecu- 
tion, may  testify  that  in  setting  on  foot  the  legal  proceedings  he  believed  that  there 
was  cause  for  them.  And  as  an  extreme  case  which  we  are  not  willing  to  extend, 
one  against  whom  the  defense  of  usury  has  been  set  up,  has  been  permitted  to  testify 
what  was  the  intention  in  stipulating  for  a  sum  reserved  out  of  the  face  of  a  note. 
But  that  an  act  should  he  held  to  have  or  not  to  have  effect,  and  one  party  to  h  to 
be  bound  or  not,  as  the  other  party  to  it  should,  by  his  undisclosed  purpose,  have 
determined,  is  warranted  by  no  sound  principle."  In  Robbins  v.  Fletcher,  (101  Mass.) 
115.  An  action  of  slander  for  accusing  plaintiff  of  fornication,  defendant  having 
denied,  in  his  testimony  in  chief,  that  he  spoke  the  words  alleged,  or  that  he  had  any 
ill-will  toward  the  plaintiff,  may  be  asked  on  cross-examination  whether  he  did  not> 
before  the  time  when  it  was  contended  that  he  uttered  the  words  sued  on,  have  a 
hostile  feeling  toward  a  person  whom  there  is  evidence  that  he  spoke  of  as  the  other 
party  to  the  offense. 


612  EVIDENCE   FOR   DEFEND  ANT.  [Ch.  XVII. 

liberty  to  prove  anything  which  destroyed  the  plaintiff 's 
cause  of  action ; i  he  might  disprove  the  fact  of  publication, 
or  show  that  the  matter  published  was  not  of  an  injurious 
character,  or  that  the  publication  was  privileged ; 2  as  being 
a  fair  comment  on  a  matter  of  public  concern ; 3  any  cir- 
cumstances which  tended  to  disprove  malice ; 4  or  that 
plaintiff  procured  the  publication  with  a  view  to  an 
action;5  and  where  the  libel  consisted  of  a  report  of 
proceedings  the  publication  of  which  was  not  privileged, 


3  Barber  v.  Dixon,  1  Wils.  45  ;  and  see  O'Donoghue  v.  McGovern,  23  Wend.  26. 
Where  the  words  clearly  impute  a  felony,  if  the  defendant  do  not  justify,  he  cannot 
show  that  the  words  related  to  an  act  which  might  have  been  innocent.  (Laine  v. 
Wells,  7  Wend.  175.) 

2  O'Brien  v.  Clements,  15  Law  Jour.  Rep.  285,  Ex. ;  3  D.  <fc  L.  676.  Where  the 
defense  is  privileged  communication,  it  need  not  be  specially  pleaded.  (Lillia  v. 
Price,  1  Nev.  &  P.  16 ;  5  Dowl.  432 ;  Richards  v.  Boulton,  4  Up.  Can.  Q.  B.  Rep.  0. 
S.  95 ;  Abrams  v.  Smith,  8  Blackf.  95.)  But  it  may  be  specially  pleaded,  (Dunn  v. 
Winters,  2  Humph.  512)  and  it  seems  it  must  be  pleaded  in  Massachusetts.  (Goodwin 
v.  Daniels,  7  Allen  (Mass.),  61.)  In  New  York  it  must  be  pleaded.  In  England,  in 
actions  of  slander  of  the  plaintiff  in  his  office,  profession,  or  trade,  the  plea  of  not 
guilty  will  operate  to  the  same  extent  precisely  as  at  present  in  denial  of  speaking 
the  words,  of  speaking  them  maliciously  and  in  the  sense  imputed,  and  with  reference 
to  the  plaintiff's  office,  profession,  or  trade  ;  but  it  will  not  operate  as  a  denial  of  the 
fact  of  the  plaintiff  holding  the  office,  or  being  in  the  profession  or  trade  alleged. 
(Reg.  Gen.  H.  T.,  4  Will.  4 ;  2  C.  <fe  M.  23  ;  10  Bing.  477 ;  3  NeV.  &  M.  9 ;  5  B.  & 
Adol.  ix.)     All  matters  in  confession  and  avoidance  shall  be  specially  pleaded.     (iJ.) 

8  Lucan  v.  Smith,  20  Jur.  1170. 

4  Weaver  v.  Hendrick,  30  Mis.  (9  Jones)  502  ;  Smith  v.  Smith,  39  Penn.  St.  R. 
441 ;  Sims  v.  Kinder,  1  Carr.  279  ;  Van  Deusen  v.  Sutphin,  5  Ohio,  N.  S.  293 ;  Swift 
v.  Dickerman,  31  Conn.  285  ;  Williams  v.  Miner,  18  Conn.  464;  Thomas  v.  Dunaway. 
30  El.  373;  Brunswick  v.  Pepper,  2  C.  <fe  K.  683;  Remington  v.  Congdon,  2  Pick. 
310 ;  Gilman  v.  Lowell,  8  Wend.  573.  And  in  New  York  under  a  general  denial  and 
a  proper  statement  in  the  answer,  any  circumstance  to  disprove  malice  may  be  shown, 
although  it  tended  to  prove  the  truth  of  the  charge.  (Bush  v.  Prosser,  1 1  N.  Y.  347 ; 
Bisbey  v.  Shaw,  12  N.  Y.  67;  Dolevin  v.  Wilder,  34  How.  Pra.  Rep.  488.)  Where 
there  is  any,  the  slightest  doubt  in  the  mind  of  the  judge  as  to  whether  the  facts  set 
up  in  mitigation  tend  to  disprove  malice,  he  should  permit  them  to  be  proved,  and 
submit  the  question  of  malice  to  the  jury.     (Id.) 

6  See  ante,  note  3,  p.  150.  In  an  action  for  slander,  plea  the  general  issue.  Held,  proper 
to  refuse  to  charge  "  that  if  the  defendant  did  no  more  than  repeat  a  report  which 
originated  from  the  plaintiff's  levity  and  carelessness,  the  plaintiff  could  not  recover." 
(Fitzgerald  v.  Stewart,  53  Penns.  343 ;  see  apparently  contra,  Shirley  v.  Keatly,  4 
Cold.  (Tenn.)  29.)  Plaintiff's  motive  in  bringing  the  action  is  immaterial  to  the 
issue  on  a  plea  of  justification.     (Bradley  v.  Kennedy,  2  Greene,  (Iowa)  231.) 


§  404.]  PROOF   OF   JUSTIFICATION.  613 

it  was  held  that  it  might  be  shown  under  the  general 
issue  and  in  mitigation  that  the  report,  although  not 
correct,  was  an  honest  one,  and  intended  to  be  a  fair 
account  of  the  transaction  referred  to.1  The  general  issue 
put  in  issue,  the  malice  in  making  the  publication,2  and 
amounted  to  a  denial  of  the  special  damage,'3  and  the 
general  good  reputation  of  the  plaintiff'  (§  406),  but  it 
admitted  the  inducement 4  and  the  falsity  of  the  charge.5 
The  defenses  of  accord  and  satisfaction,  former  recovery, 
truth  and  illegality  of  plaintiff's  occupation,  must  be 
specially  pleaded  (§§  250,  251,  354,  183,  409),  to  enable 
the  defendant  to  give  evidence  of  them  on  the  trial. 

§  404.  As  to  the  proof  of  a  justification,  it  is  held 
that,  in  an  action  for  slander  or  libel,  the  charge  com- 
plained of  being  the  commission  of  a  criminal  offense,  the 
same  degree  of  evidence  is  necessaiy  to  sustain  a  plea  of 
justification  as  would  be  necessary  to  convict  the  plaintiff 
in  a  criminal  prosecution  for  the  same  offense.6  At  least 
the  defendant  must  prove  the  crime  charged  to  the  satis- 
faction of  the  jury,7  and   beyond   a  reasonable  doubt.8 

1  Smith  v.  Scott,  2  Car.  &  K.  580 ;  and  see  East  v.  Chapman,  1  Mo.  &  Malk.  46  ; 
Charlton  v.  Watson,  6  C.  <fc  P.  385. 

a  Keegan  v.  Robson,  6  Up.  Can,  Q.  B.  375. 

8,Wilby  v.  Elston,  8  C.  B.  142.  A  traverse  of  special  damage  held  unnecessary 
and  improper.  (Smith  v.  Thomas,  2  Bing.  N.  C.  372  ;  see  Perring  v.  Harris,  2  Moo. 
<fc  Rob.  5 ;  Custis  v.  Sandford,  4  Ir.  C.  L.  197.) 

4  Fradley  v.  Fradley,  8  C.  &  P.  572  ;  Power  v.  Heming,  10  M.  &W.  564  ;  Gwynne 
v.  Sharpe,  1  C.  &  Mar.  533. 

6  Sheahan  v.  Collins,  20  111.  325. 

6  Landis  v.  Shanklin,  1  Carter  (Ind.)  92;  Shoulty  v.  Miller,  lb.  554;  Gants  v.  Vi- 
nard,  lb.  476;  Newbit  v.  Statuck,  35  Maine  (5  Red.)  315;  Dwinell  v.  Aiken,  2  Tyler, 
75;  Seely  v.  Blair,  Wright,  683;  Steinman  v.  Mc Williams,  6  Barr,  170;  Willett  v. 
Harmer,  8  C.  &  P.  695;  Swails  v.  Butcher,  2  Carter  (Ind.)  84;  Woodbeck  v.  Keller, 
6  Cowen,  118;  Forshee  v.  Abrams,  2  Clarke  (Iowa,)  571 ;  contra,  Barfield  v.  Britt,  2 
Jones'  L.  (N.  Car.)  41;  Gorman  v.  Sutton,  32  Penns.  247;  Sauter  v.  McEwen,  8 
Blackf.  495 ;  Wonderly  v.  Nokes,  8  BlaCkf.  589 ;  Folsom  v.  Brawn,  5  Foster  (N. 
Hamp.)  114;  Kincade  v.  Bradshaw.  3  Hawks,  63. 

7  Offutt  v.  Earlywine,  4  Blackf.  460.  Evidence  of  plaintiffs  being  suspected  is  not 
sufficient.     (Commons  v.  Walters,  1  Porter,  32o  ;  Knight  v.  Foster,  39  N.  II.  576.) 

"  Shortly  v.  Miller,  1  Smith,  395. 


614  EVIDENCE   FOR   DEFENDANT.  [Ch.  XVII. 

The  plea  must  be  substantially  proved,1  or  the  plaintiff  is 
entitled  to  recover.2  Where  the  charge  is  crime,  a  con- 
viction of  the  plaintiff  of  the  crime  is,  in  general,  admis- 
sible to  sustain  a  justification,  but  it  is  only  prima  facie 
evidence,  and  must  be  excluded  if  the  defendant  was  a 
witness  in  the  criminal  prosecution.3  A  plea  of  justifica- 
tion of  libel,  that  the  plaintiff  had  been  guilty  of  bigamy, 
requires  as  strong  proof  as  on  an  indictment  for  that 
offense;  but  a  plea  justifying  a  charge  of  polygamy,  held 
sustained  by  proof  of  actual  marriage  in  two  instances, 
and  of  cohabitation  and  reputation  as  to  a  third.4  To 
sustain  a  plea  of  justification  of  a  charge  of  perjury,  the 
testimony  of  two  witnesses  at  least,  or  of  one  witness  and 
strong  corroborating  circumstances,  are  necessary.5  And 
the  defendant  must  prove  not  only  that  the  plaintiff's  tes- 
timony was  false,  but  that  it  was  wilfully  and  corruptly 
false.6  The  corrupt  intent,  however,  is  inferable  from  the 
falsity  of  the  testimony.7  To  establish  the  justification, 
the  testimony  which  the  plaintiff  gave  on  the  trial  when 
the  alleged  perjury  was  committed,  may  be  received  as 
evidence  to  be  considered  by  the  jury.8     Under  an  allega- 

1  Napier  v.  Daniell,  3  Sc.  417;  2  Hodges,  187;  3  Bing.  N.  C.  77;  Forrest  v.  Han- 
son, 1  Cr.  C.  C.  63. 

2  Kincade  v.  Bradshaw,  3  Hawks,  63. 

3  Maybee  v.  Avery,  18  Johns.  352.  This  was  at  the  time  when  parties  could  not 
be  witnesses  in  their  own  behalf  in  civil  actions.  Where  they  can  be  such  witnesses, 
probably  the  exception  stated  in  the  text  does  not  apply. 

4  Willett  v.  Harmer.  8  C.  &  P.  695. 

8  Bradley  v.  Kennedy,  2  Greene  (Iowa)  231 ;  Steinman  v.  McWilliams,  6  Barr, 
170;  Byrketv.  Monohon,  7  Blackf.  83;  Woodbeck  v.  Keller,  6  Cowen,  118;  Newbit 
v.  Statuck,  35  Maine  (5  Red.)  31 ;  Dwinells  v.  Aiken,  2  Tyler,  75.  This  rule  was 
somewhat  qualified  in  Kincade  v.  Bradshaw,  3  Hawks,  63;  Spruil  v.  Cooper,  16  Ala. 
791.     See  3  Phillips'  Ev.,  Cowen  &  Hill's  and  Edwards'  notes,  tit.  in  index  Slander. 

6  McKinly  v.  Robb,  20  Johns.  351.  That  is  to  say  he  must  prove  technical  per- 
jury. (Hicks  v.  Rising,  24  111.  566;  McGlenary  v.  Keller,  3  Blackf.  488;  Gorton  v. 
Keeler,  51  Barb.  475;  contra,  "Wood  v.  Southwick,  97  Mass.  354.) 

7  Hopkins  v.  Smith,  3  Barb.  599. 

8  Newbit  v.  Statuck,  35  Maine  (5  Red.)  315;  Arrington  v.  Jones,  9  Port.  139.  In 
an  action  of  slander,  for  charging  the  plaintiff  with  perjury  in  a  judicial  proceeding, 


§  405.]  PROOF   OF   JUSTIFICATION.  615 

tion  in  the  libel  that  the  defendant  had  crashed  the  Hy- 
geist  system  of  wholesale  poisoning,  and  that  several 
vendors  had  been  convicted  of  manslaughter,  held,  that  it 
was  not  necessary  for  the  defendant  to  prove  that  the  sys- 
tem had  been  entirely  crashed,  and  that  proof  of  the  con- 
viction of  two  vendors  for  manslaughter  sufficiently 
proved  the  plea,  although  the  evidence  as  to  the  death 
being  occasioned  by  not  complying  with  the  printed  regu- 
lations in  some  respects  varied  from  the  allegation,  there 
being  evidence  for  the  jury  as  to  the  cause  of  death.1 

§  405.  Where  the  words  laid  charge  the  plaintiff  with 
having  committed  a  certain  offense,  evidence  will  not  be 
received  that  he  committed  a  different  offense,  neither 
with  the  same  or  with  other  persons.2  As  where  the 
plaintiff  was  charged  with  adultery  with  J.  S.,  it  was  held 
that  proof  of  adultery  with  others  than  J.  S.  could  not  be 
received.3  Where  the  plaintiff  was  charged  with  keeping 
a  house  of  ill-fame,  it  was  held  that  evidence  of  unchaste 
and  lascivious  conduct  of  the  plaintiff's  family,  not  estab- 
lishing the  offense  was  inadmissible  for  any  purpose.4 
And  where  the  charge  was  of  perjury  on  a  certain  occa- 
sion, held  that  defendant  could  not  justify  by  proof  of 

the  defendant,  on  the  plea  of  "  not  guilty,"  may  prove  what  the  words  sworn  by  the 
plaintiff  were,  in  mitigation  of  damages.     (Grant  v.  Hover,  6  Munf.  13.) 

1  Morrison  v.  Harmer,  3  Bing.  N.  C.  755 ;  4  Scott,  524. 

a  Pallet  v.  Sargeant,  36  N.  H.  496 ;  Sharpe  v.  Stevenson,  12  Ired.  348 ;  Barthelemy 
v.  The  People,  2  Hill,  257.  Under  a  plea  of  justification  for  charging  plaintiff  with 
fornication  with  a  certain  man,  evidence  that  her  child  is  a  bastard  is  not  sufficient. 
(Richardson  v.  Roberts,  23  Geo.  215.)  Where  the  words  charged  the  stealing  of  D.'s 
hay,  and  the  defendant  offered  evidence  to  prove  that  the  hay,  the  subject  of  the  theft 
so  charged,  was  the  joint  property  of  the  plaintiff  and  D.,  so  that  in  legal  effect  no 
such  crime  was  or  could  have  been  committed,  it  was  held,  that  as  the  charge  was 
unequivocally  a  charge  of  theft,  so  intended  and  so  received,  the  evidence  offered  by 
the  defendant  was  inadmissible.     (Williams  v.  Miner,  18  Conn.  464.) 

3  Matthews  v.  Davis,  4  Bibb,  173;  and  see  Walters  v.  Smoot,  11  Ired.  315. 

4  Bush  v.  Prosser,  13  Barb.  221.    On  trial  for  words  imputing  unchastity  to  plain- 
tiff, it  is  not  permissible,  under  a  plea  of  not  guilty,  to  prove  that  the  house  in  which 
the  plaintiff  resided  was  a  house  of  ill-fame.     (Hackett  v.  Brown,  2  Heiskell  (Tenn. 
264.) 


616  EVIDENCE   FOR   DEFENDANT.  [Cil.  XVII. 

perjury  on  any  other  occasion  than  that  alleged.1  To  a 
charge  that  plaintiff  had  had  connexion  with  a  mare, 
innuendo  been  guilty  of  the  crime  against  nature  with  a 
beast,  defendant  gave  notice  that  he  would  prove  on  the 
trial  that  plaintiff  had  had  connexion  with  a  cow,  and  on 
the  trial  offered  to  prove  the  allegation  in  his  notice,  the 
court  refused  to  receive  it,  either  in  bar  or  in  mitigation, 
on  the  ground  that  it  was  not  a  justification  of  the  spe- 
cific charge  laid,  but  of  another  charge  distinct  as  to  the 
subject-matter.2  A  libel  charging  hardness  towards  the 
poor,  dissoluteness  of  morals,  and  habits  of  vice  and  calum- 
ny, as  conclusions  deducible  from  particular  instances 
enumerated  and  arranged  in  it,  cannot  be  supported  by 
proof  of  other  instances  of  conduct,  not  detailed  or  al- 
luded to  in  it.8 

§  406.  The  "plea  of  not  guilty  put  in  issue  the  general 
character  (reputation)4  of  the  plaintiff,  and  therefore  upon 
a  plea  of  not  guilty  only,  the  defendant  might  give  in  evi- 
dence in  mitigation  the  general  bad  character  (reputa- 
tion) of  the  plaintiff,  before  and  at  the  time  of  the  publi- 
cation complained  of.  "  Certainly  a  person  of  disparaged 
fame  is  not  entitled  to  the  same  measure  of  damages  with 
one  whose  character  is  unblemished,  and  it  is  competent 
to  show  that  by  evidence."5     This  "principle  so  much 


1  Aldrich  v.  Brown,  1 1  Wend.  596 ;  Whitaker  v.  Carter,  4  Ired.  461.  But  where 
the  charge  was  larceny,  held  that  defendant  might  offer  evidence  to  prove  a  particu- 
lar larceny  of  the  same  description  as  that  charged.     (Adams  v.  Ward,  1  Stew.  42.) 

2  Andrews  v.  Vanduzer,  11  Johns.  38. 

8  Barthelemy  v.  The  People,  2  Hill,  248. 

4  As  to  the  difference  between  reputation  and  character  see  ante,  note,  p.  80. 
Character  is  conduct,  it  is  independent  of  reputation.  Character  must  be  true,  while 
reputation  may  be  false.     (Seely  v.  Blair,  Wright  (Ohio,)  683.) 

6  L'd  Ellenborough,  in v.  Moore,  1  M.  &  S.  284.     In  Bracegirdle  v.  Bailey,  1 

Fost.  &  F.  536,  there  was  no  plea  of  justification,  plaintiff  was  put  on  the  witness 
stand  but  not  examined  in  chief,  held  that  defendant  could  not,  to  mitigate  damages, 
put  questions  to  plaintiff  tending  to  discredit  him  nor  which  went  to  show  his  bad 
character. 


§  406.]  plaintiff's  reputation.  617 

discussed  at  an  early  day  and  for  a  time  left  unsettled, 
has  since  been  so  well  established  by  authority  as  not 
now  to  be  open  for  discussion ; 1  and  such  evidence  was 
also  admissible  where  the  defendant,  in  addition  to  not 
guilty,  put  in  a  plea  of  justification,  and  gave  evidence  to 
support  it  but  failed  to  establish  it.2  Whether  in  New 
York  such  evidence  would  be  admissible  under  a  general 
denial  and  without  any  circumstances  in  mitigation  set 
up  in  the  answer,  does  not  appear  to  have  been  decided 
in  any  reported  case.     In  our  opinion,  to  entitle  a  defend- 


1  Jewett,  J.,  Hamer  v.  McFarlin,  4  Denio,  509,  citing  Foot  v.  Tracy,  1  Johns.  46; 
Springstein  v.  Field,  Anthon's  N.  P.  185;  Paddock  v.  Salisbury,  2  Cow.  811 ;  Doug- 
lass v.  Tousey,  2  Wend.  352;  Root  v.  King,  7  Cow.  613;  S.  C.  in  error,  4  Wend.  113; 
Richardson  v.  Northrup,  56  Barb.  105;  and  see  Gilman  v.  Lowell,  8  Wend.  573;  Scott 
v.  McKinnish,  15  Ala.  662 ;  Pope  v.  "Welsh,  18  Ala.  631 ;  Fuller  v.  Dean,  31  Ala.  654; 
Anthony  v.  Stephens,  1  Miss.  254  ;  Bryan  v.  Gurr,  27  Geo.  378;  Eastland  v.  Caldwell, 
2  Bibb,  21 ;  Bowditch  v.  Peckham,  1  Chip.  145;  Bridgman  v.  Hopkins,  34  Verm.  532; 
Lamos  v.  Snell,  6  N.  Hamp.  413 ;  Sawyer  v.  Eifert,  2  N.  &  M.  511 ;  Seymour  v.  Mor- 
rill, 1  Root,  459 ;  Vick  v.  Whitfield,  2  Ham.  222 ;  De  Witt  v.  Greenfield,  5  Ham.  225 ; 
Brunson  v.  Lynde,  1  Root,  354 ;  Wolcott  v.  Hull,  6  Mass.  514 ;  Alderman  v.  French, 
1  Pick.  1 ;  Parkhurst  p.  Ketchum,  6  Allen,  406 ;  Buford  v.  McLuniff,  1  N.  &  M.  268 ; 
Henry  v.  Norwood,  4  Watts,  347;  Young  v.  Bennett,  4  Scam.  43;  Sanders  v.  John- 
eon,  6  Blackf.  50  ;  McCabe  v.  Platter,  6  Blackf.  405;  Burke  v.  Miller,  6  Blackf.  155 ; 
Steinman  v.  McWilliams,  6  Barr,  170;  McNutt  v.  Young,  8  Leigh,  542;  Stone  v.  Var- 
ney,  7  Mete.  86;  Bowen  v.  Hall,  12  Mete.  232;  Sheahan  v.  Collins,  20  111.  325;  Bell 
v.  Parke,  11  Irish  Law  Rep.  485.  As  to  the  rule  in  England,  see  Jones  v.  Stevens,  11 
Price,  235,  where  it  is  said,  it  is  not  competent  to  a  defendant  to  plead  a  justifica- 
tion, as  of  plaintiff's  general  bad  character,  in  general  and  indefinite  terms,  but  he  is 
bound  to  state  facts  specially  to  give  the  plaintiff  an  opportunity  of  denying  them; 
such  pleas  are  demurrable;  and  it  is  an  abuse  of  the  court  to  put  them  on  record; 
neither  can  he  any  more  be  permitted  to  give  particular  or  general  evidence  of  that 
nature  in  mitigation  of  damages,  than  to  plead  it  in  bar  of  the  action.  See  Morris  v. 
Lang-dale,  2  B.  &  P.  284.  Evidence  of  general  bad  reputation  of  plaintiff  was  reject- 
ed, there  being  no  plea  of  justification.  Edgar  v.  Newell,  24  Up.  Can.  Q.  B.  Rep. 
215 ;  Myers  v.  Curry,  22  Id.  470  )  In  an  action  for  slander  for  charging  the  plaintiff, 
a  female,  with  want  of  chastity,  the  judge  directed  the  jury  "that  if  they  should  find 
that  plaintiff  had  so  destroyed  her  character  by  her  own  lewd  and  dissolute  conduct 
as  to  have  sustained  no  injury  from  the  words  spoken,  they  might  give  only  nominal 
damages."  (Flint  v.  Clark,  13  Conn.  361 ;  and  see  Conroe  v.  Conroe,  47  Penn.  St.  R. 
198.) 

s  Hnmer  v.  McFarlin,  4  Denio,  509.  It  was  held  otherwise  in  Jackson  v.  Stetson, 
15  Mass.  48,  and  that  case  was  followed  in  Alderman  v.  French,  1  Pick.  1.  But 
Jackson  v.  Stetson  was  questioned  in  Cilley  v.  Jenness,  2  N.  Hamp.  89;  Whitaker  v. 
Freeman,  1  Dev.  280;  and  see  Stone  v.  Varney,  1  Mete.  86;  2  Stark.  Ev.  878;  and 
the  cases  cited  in  the  last  preceding  note. 
40 


618  EVIDENCE   FOR   DEFE1STDANT.  [Ch.  XVII. 

ant  in  the  courts  of  New  York  to  question  the  general 
character  of  the  plaintiff,  he  should  state  in  his  answer  his 
intention  to  give  such  evidence  on  the  trial.1 

§  407.  When  an  inquiry  into  the  reputation  of  the 
plaintiff  is  permissible,  it  is  his  general  reputation  taken 
as  a  whole,  and  not  his  reputation  as  to  any  particular 
act  or  in  any  particular  transaction,  that  is  to  be  inquired 
of ; 2  and,  therefore,  evidence  cannot  be  given  of  his  guilt 
of  any  specific  act  of  misconduct ; 3  as  that  he  had  been 
guilty  of  false-swearing.4  Where  the  charge  was  that  the 
plaintiff,  a  physician,  had  no  professional  knowledge  or 
skill,  and  lost  almost  all  his  patients,  it  was  held  that 
proof  of  particular  instances  in  which  the  plaintiff  had 
shown  want  of  knowledge  and  skill,  for  the  purpose  of 
mitigating  damages,  was  inadmissible.5  And  although  it 
has  been  said  that  when  a  defendant  may  give  evidence 
of  the  general  bad  reputation  of  the  plaintiff,  he  is  not 
confined  to  the  subject-matter  of  the  defamation  com- 
plained of,6  yet  in  an  action  for  charging  the  plaintiff  with 
perjury,  it  was  held  erroneous  to  admit  evidence  of  his 


1  Anon.,  8  How.  Pra.  Rep.  434 ;  and  see  Stiles  v.  Comstock,  9  Id.  48. 

2  Steinman  v.  Mc Williams,  6  Barr,  1*70;  Spilling  v.  Curson,  27  Md.  175  ;  Wright 
v.  Shroeder,  2  Curt.  548  ;  Fitzgerald  v.  Stewart,  53  Penns.  343 ;  Lambert  v.  Pharis,  3 
Head  (Tenn.)  622  ;  Fountain  v.  West,  23  Iowa,  9. 

3  Andrews  v.  Van  Deuser,  11  Johns.  38;  Vick  v.  Whitfield,  2  Ham.  222  ;  Dewitt 
v.  Greenfield,  5  Ham.  225;  Lamos  v.  Snell,  6  N.  Hamp.  413;  Sawyer  v.  Eifert,  2  N. 
<fe  M.  511 ;  Burke  v.  Miller,  6  Blackf.  155  ;  Freeman  v.  Price,  2  Bailey,  115  ;  Ridley  v. 
Perry,  4  Shep.  21 ;  Matthews  v.  Davis,  4  Bibb,  173  ;  Brown  v.  Hall,  12  Met.  232; 
Parkhurst  v.  Ketchum,  6  Allen,  406. 

4  Luther  v.  Skeen,  8  Jones'  Law  (N".  Car.)  356. 

6  Swift  v.  Dickerman,  31  Conn.  285.  And  such  evidence  would  not  be  admissible 
for  the  purpose  of  showing  the  professional  reputation  of  the  plaintiff,  as  reputation 
can  only  be  proved  by  the  direct  testimony  of  those  who  are  acquainted  with  it,  and 
not  by  particular  facts.     [Id.) 

6  Sayre  i.  Sayre,  1  Dutcher,  235;  Lamo3  v.  Snell,  6  N.  Hamp.  413;  Sawyer  v. 
Eifert,  2  N.  &  M.  511 ;  see,  however,  Wright  v.  Shroeder,  2  Curtis,  C  C.  548.  The 
inquiry  should  be  confined  to  the  plaintiff's  general  character  for  integrity  and  moral 
worth,  or  to  conduct  similar  in  character  to  that  with  which  he  was  charged  by  the 
defendant.    (Leonard  v.  Allen,  11  Cusb.  241.) 


§  407.]  plaintiff's  reputation.  619 

general  bad  character  for  truth.1  And  where  the  charge 
as  proven  was  of  burning  a  jail  and  murdering  a  man  in 
it,  but  there  was  some  evidence  that  it  was  only  of  aiding 
an  escape  from  the  jail,  held,  that  the  evidence  that  the 
defendant  was  reputed  guilty  of  the  latter  offense,  was 
inadmissible  for  any  purpose.2  The  defendant  imputed 
to  the  plaintiff,  who  was  a  clergyman,  these  words  :  "  Mr. 
S.  said  the  blood  of  Christ  had  nothing  to  do  with  our 
salvation,  more  than  the  blood  of  a  hog."  Held,  that 
testimony  tending  to  prove  that  the  plaintiff  denied  the 
divinity  of  Christ  and  the  doctrine  of  his  atonement,  and 
said  he  was  a  created  being,  a  good  man  and  perfect,  his 
death  that  of  a  martyr,  but  that  there  was  no  more  virtue 
in  his  blood  than  that  of  any  creature,  was  not  admissible, 
either  in  justification  or  mitigation.3  In  an  action  of 
slander  for  having  called  the  plaintiff  a  thief,  and  saying 
that  "he  had  stolen  his  (defendant's)  spar,"  the  defend- 
ant, in  mitigation  of  damages,  offered  in  evidence  the 
record  of  a  verdict  and  judgment  in  his  favor  against  A., 
for  having  taken  maliciously,  and  converted  to  his  own 
use,  the  spar  in  question,  it  was  held  that  such  evidence 
was  inadmissible.4  And  where  the  charge  was  that  the 
plaintiff  was  a  thief,  and  had  stolen  the  defendant's  corn, 
and  the  defendant  justified,  held  that  evidence  that  the 
parties  were  tenants  in  common  of  some  corn,  and  that 
the  defendant  had  taken  secretly,  unfairly,  and  dishonestly, 

1  Steinman  v.  McWilliams,  6  Barr,  170.  In  an  action  for  charging  the  plaintiff 
with  perjury,  the  plaintiff  proved  the  speaking  of  the  words  charged,  and  then  asked 
the  witness  what  was  the  plaintiff's  general  character,  when  on  oath  and  when  not  on 
oath,  as  a  man  of  truth.  The  witness  answered  the  question  favorably  to  the  plain- 
tiff. The  defendant's  counsel  then,  in  cross-examining  the  witness,  asked  him  what 
was  the  plaintiffs  general  moral  character,  and  the  plaintiff  objected  to  the  question. 
Held,  that  the  question  ought  to  be  answered,  because  it  was  on  cross-examination, 
and  because  the  answer  might  furnish  evidence  in  mitigation  of  damages.  (Lincoln  v. 
Chrisman,  10  Leigh,  338.) 

2  Cole  v.  Perry,  8  Cow.  214. 

3  Skinner  v.  Grant,  12  Verm.  456. 

4  Watson  v.  Churchill,  5  Day,  256. 


620  EVIDENCE   FOR   DEFENDANT.  [Ch.  XVII. 

more  than  his  share,  was  not  admissible  either  in  justifica- 
tion or  mitigation.  Mistake,  to  mitigate,  must  be  mistake 
of  fact  and  not  of  law.1 

§  408.  The  rule  in  relation  to  proof  of  the  character 
of  the  plaintiff  is,  that  the  inquiry  must  be  made  as  to 
his  general  reputation  where  he  is  best  known,  and  the 
witness  ought  ordinarily  to  come  from  his  neighborhood. 
But  what  the  extent  of  such  neighborhood  is,  and  what 
credit  is  to  be  given  to  witnesses  near  and  remote,  are 
questions  for  the  jury  in  determining  the  general  charac- 
ter of  the  person  in  question.2  One  who  went  to  the 
place  of  the  plaintiff's  former  residence  to  learn  her 
character  while  there,  is  not  competent  to  prove  it ;  nor 
if  plaintiff  kept  boarders  at  the  time  of  the  slander,  is 
evidence  of  their  opinion  admissible ;  nor  can  one  testify 
who  knows  nothing  about  the  plaintiff's  reputation  but 
what  he  heard  from  witnesses  at  a  prior  circuit.3  A  jury, 
in  estimating  character,  are  to  take  the  testimony  of 
witnesses  who  are  supposed  to  be  able  or  capable  of  re- 
flecting, in  general  terms,  the  judgment  of  the  public.4 
Proof  of  the  bad  reputation  of  the  plaintiff,  although  of 
a  kind  that  could  not  have  been  caused  by  the  slander, 
must  be  of  his  reputation  prior  to  or  at  the  time  of  the 
publication  complained  of.5     His   bad  reputation  subse- 

1  Bisbey  v.  Shaw,  15  Barb.  578. 

8  Powers  v.  Presgroves,  38  Miss.  22*7.  The  reputation  of  the  plaintiff,  among  the 
minority  of  his  neighbors,  is  inadmissible.  (Id.  ;  and  see  Swift  v.  Dickerman,  31 
Conn,  285.)  In  an  action  for  accusing  the  plaintiff  of  unchasteness,  where  a  witness 
deposes  that  the  plaintiff's  character  for  chastity  is  bad,  it  is  not  necessary  that  the 
witness  should  first  have  been  asked  whether  he  knows  the  plaintiff's  general  charac- 
ter for  chastity.  (Senter  v.  Carr,  15  N.  Hamp.  351.)  A  witness  who  has  stated  that 
the  plaintiffs  character  for  moral  worth  is  bad,  may  be  asked,  on  cross-examination, 
what  immorality  is  imputed  to  him.     (Leonard  v.  Allen,  11  Cush.  241.) 

3  Douglas  v.  Tousey,  2  Wend.  352. 

4  Luther  v.  Skeen,  8  Jones'  Law  (N.  Car.),  356. 

8  Douglass  v.  Tousey,  2  Wend.  252.  Where  the  charge  was  of  general  unchastity, 
it  was  held  that  under  the  general  issue  the  general  bad  reputation  of  the  plaintiff 
might  be  shown  in  mitigation.  (Conroe  v.  Conroe,  47  Penns.  198.) 


■§  409.]  PEOOF  OF  TRUTH.  621 

quent  to  the  publication  complained  of,  may  have  been 
the  effect  of  such  publication. 

§  409.  The  defense  of  truth  must  be  specially  pleaded. 
The  defendant  cannot,  under  the  general  issue,  prove  the 
truth  of  the  publication  complained  of.1  But  if  the 
plaintiff  give  in  evidence  parts  of  the  publication  not  set 
forth  in  the  declaration,  the  defendant  may,  under  the 
general  issue,  justify  such  parts.2  The  proof  of  the  repe- 
tition by  the  defendant  of  the  words  complained  of,  after 
the  commencement  of  the  action,  will  not  confer  upon  the 
defendant  the  right  under  the  general  issue  to  give,  evi- 
dence of  the  truth  of  the  matter  published.3  And  under 
the  general  issue  the  defendant  cannot,  even  in  mitigation, 
give  evidence  of  any  facts  which  conduce  [to  prove  the 
truth,  or  which  form  a  link  of  evidence  to  that  end.4  The 
rule  was  that  evidence  in  mitigation  must  be  such  as  ad- 
mitted the  charge  to  be  false.5  And  if  a  defendant  failed 
to  establish  a  plea  of  justification,  he  was  not  entitled  to 
any  benefit  from  the  evidence  given  in  support  of  such 
plea,  and  which  tended  to  prove  the  truth  of  the  charge.6 
Nor  was  a  defendant  allowed  to  prove  in  mitigation  any 

1  Beardsley  v.  Bridgeman,  17  Iowa,  290;  Porter  v.  Botkins,  59  Penns.  484;  Mc- 
Campbell  v.  Thornburgh,  3  Head  (Tenn.)  109  ;  Shirley  v.  Keathy,  4  Cold.  (Tenn.)  29 ; 
Barrows  v.  Carpenter,  1  Cliff.  204.  Semble,  that  in  slander  of  title,  the  rule  is  other- 
wise (Watson  v.  Reynolds,  1  M.  &  M.  1.)    See  §  354,  ante. 

a  Henry  v.  Norwood,  4  Watts,  347;  and  see  Woodburn  v.  Miller,  Cheves,  194; 
Burke  v.  Miller,  C  Blackf.  155  ;  Stow  v.  Converse,  4  Conn.  18 ;  Wagner  v.  Holbruuner, 

7  Gill.  296. 

8  Teagle  v.  Deboy,  8  Blackf.  134. 

4  Purple  v.  Horton,  13  Wend.  9  ;  Scott  v.  McKinnisli,  15  Ala.  662 ;  Teagle  v.  Deboy, 

8  Blackf.  134  ;  Thompson  v.  Bowers,  1  Doug.  321 ;  Swift  v.  Dickerman,  31  Conn.  285 ; 
Wagstaff  v.  Ashton,  1  Harring.  503  ;  Grant  v.  Hover,  6  Mumf.  13  ;  Henson  v.  Veatch, 
1  Blackf.  369  ;  Else  v.  Ferris,  Anthon,  23;  Gilman  v.  Lowell,  8  Wend.  573  ;  and  see 
Owen  v.  McKean,  14  111.  459 ;  Williams  v.  Miner,  18  Conn.  464  ;  McAlister  v.  Sibley, 
26  .Maine  (12  Shep.)  474.  Particular  facts,  which  might  form  links  in  the  chain  of 
circumstantial  evidence  against  the  plaintiff,  cannot  be  received  under  the  general  issue 
in  mitigation  of  damages.  (Wormouth  v.  Cramer,  3  Wend.  395.) 

6  Cooper  v.  Barber,  24  Wend.  105. 
•  Fero  v.  Ruscoe,  4  N.  Y.  162. 


622  EVIDENCE    FOR    DEFENDANT.  [Ch.  XVIL 

circumstance  which  tended  to  prove  the  truth  of  the 
charge,  although  he  expressly  disavowed  a  justification, 
and  admitted  the  falsity  of  the  charge.1  But  he  might 
prove  in  mitigation  circumstances  which  induced  him 
erroneously  to  make  the  charge  complained  of,  and  there- 
by rebut  malice,  -provided  the  evidence  did  not  necessarily 
imply  the  truth  of  the  charge,  or  tend  to  prove  it  true.2 
A  defendant  justifying,  and  failing  in  his  proof,  may  offer 
evidence  in  mitigation  of  damages,3  if  they  are  set  up  in 
his  answer.4  The  Code  of  New  York  has  so  far  modified 
these  rules  as  to  admit,  in  mitigation,  circumstances  which 
tend  to  prove  the  truth  of  the  charge,  and  to  give  a  de- 
fendant (who  has  claimed  the  right  by  his  answer)  the 
benefit  of  evidence  in  support  of  a  plea  or  answer  of 
justification,  when  such  evidence  falls  short  of  proof,  but 
nevertheless  tends  to  prove  the  truth  of  the  charge  ; 5  and 
to  admit  in   mitigation   anything  which  occasioned  the 


1  Petrie  v.  Rose,  5  Watts  <fe  Serg.  364 ;  Watson  v.  Moore,  2  Cush.  133 ;  Regnier  v. 
Cabot,  2  Gilman,  34 ;  Vesey  v.  Pike,  3  C.  &  P.  512. 

2  Minesinger  v.  Kerr,  9  Barr,  312;  Spilling  v.  Carson,  27  Md.  175.  Plaintiff  was 
arrested  for  beating  his  wife,  and  taken  before  an  alderman,  defendant  published  an 
account  of  the  arrest,  held  he  might  show  the  circumstances  which  induced  the  pub- 
lication (Donnelly  v.  Swain,  2  Phila.  Rep.  93.)  Defendant  may  show  in  mitigation 
that  he  copied  the  matter  complained  against  from  the  journals  of  Congress  (Romayne 
v.  Duane,3  W.  C  C  246  ;  ante,  note  p.  342.) 

Held,  in  action  against  the  publishers  of  a  newspaper,  that  the  defendants  could 
not  show  that  an  article  similar  to  that  complained  of  had  shortly  before  been  pub- 
lished in  another  newspaper  (Sheahan  v.  Collins,  20  111.  325.)  In  slander  for  saying, 
"Negro  Jude  said,  &c,  and  it  is  reported  everywhere,"  evidence  that  the  negro  did 
use  the  actionable  words,  held  admissible  in  mitigation  as  showing  defendant's  motive 
(Williams  v.  Greenwade,  3  Dana,  432.)  Where  a  defendant  utters  defamatory  matter 
as  on  his  own  knowledge,  evidence  will  not  be  received  on  the  trial  that  the  matter 
was  communicated  to  him  by  another  (Elliott  v.  Boyles,  31  Penns.  65.)  The  fact  of 
the  articles  being  copied  from  another  paper,  held  a  ground  for  giving  only  nominal 
damages  (Davis  v.  Cutbush,  1  Fost.  &  F.  487.) 

3  Morehead  v.  Jones,  2  B.  Munroe,  210;  Landlis  v.  Shanklin,  1  Smith  (Ind.)  78  j 
West  v.  Walker,  2  Swann  (Tenn.)  32 ;  Thomas  v.  Dunaway,  30  111.  373  ;  Pallett  v. 
Sergent,  36  N.  Hamp.  496;  contra,  Shelton  v.  Simmons,  12  Ala.  466. 

4  Russ  v.  Brooks,  4  E.  D.  Smith,  644. 

*Bush  v.  Prosser,  11  N.  Y.  347;  Bisbey  v.  Shaw,  12  N.  Y.  67.  And  so  held  in. 
Michigan  (Huson  v.  Dale,  19  Mich.  17.) 


§  410-11.]  IN   MITIGATION.  623 

defendant,  at  the  time  of  making  the  publication,  to  be- 
lieve it  to  be  true.1 

§  410.  Whether  or  not  the  defendant  may,  in  mitiga- 
tion of  damages,  give  evidence  of  improper  conduct  of  the 
plaintiff  calculated  to  invite  the  language  complained 
against,  and  affording  just  ground  to  believe  them  true, 
seems  doubtful.  In  one  case,  for  words  impugning  the 
chastity  of  the  plaintiff's  wife,  the  defendant  was  per- 
mitted to  prove,  in  mitigation  of  damages,  that  the  plain- 
tiff's wife  and  an  unmarried  man  had  lived  together 
alone  in  one  house.2 

§  411.  It  has  been  held  in  some  cases  that  the  defend" 
ant  may,  in  mitigation  of  damages,  prove  that  prior  to  the 
publication  complained  of,  a  general  report  or  suspicion 
existed  that  the  plaintiff  had  committed  the  act  charged.3 


1  Dolevin  v.  Wilder,  34  How.  Pra.  Rep.  488;  Stanley  v.  Webb,  21  Barb.  148.  As 
to  the  rule  that  the  defendant  might  show  in  mitigation  belief  in  the  truth  not  amount- 
ing to  the  actual  truth,  see  Williams  v.  Miner,  18  Conn.  464 ;  Stees  v.  Kemble,  27 
Penn.  St.  R.  112  ;  Hutchinson  v.  Wheeler,  35  Verm.  (6  Shaw)  330 ;  Gilman  v.  Lowell, 
8  Wend.  573;  Gorton  v.  Keeler,  51  Barb.  475;  Byrket  v.  Monohon,  7  Blackf.  83; 
Huson  v.  Dale,  19  Mich.  17.)  Testimony  offered  by  the  defendant  to  show  that  the 
words  charged  were  spoken  with  reference  to  a  bill  in  chancery  which  he  supposed 
was  sworn  to  by  the  plaintiff,  and  did  contain  false  allegations,  but  which  he  after- 
wards ascertained  was  sworn  to  by  another,  is  inadmissible  in  mitigation  of  damages. 
(Owen  v.  McKean,  14  111.  459 ;  but  see  Purple  v.  Horton,  13  Wend.  9 ;  Van  Derveer 
v.  Sutphin,  5  Ohio,  N.  S.  293.)  For  the  purpose  of  proving  that  the  owner  of  a 
building  which  has  been  set  on  fire  has  reason  to  believe  that  a  particular  person  was 
the  incendiary,  and  used  good  faith  in  making  statements  charging  him  with  the 
crime,  evidence  that  he  was  informed  of  declarations  and  acts  of  the  suspected 
person,  tending  to  show  his  guilt,  is  competent.  (Lawler  v.  Earle,  5  Allen  (Mass.), 
22.) 

2  Reynolds  v.  Tucker,  6  Ohio,  N.  S.  516  ;  and  see  Bradley  v.  Heath,  12  Pick.  163  ; 
Haywood  v.  Foster,  16  Ohio,  88  ,  Minesinger  v.  Kerr,  9  Barr,  312 ;  Shoulty  v.  Miller, 
1  Carter  (Ind.),  544;  but  such  evidence  was  rejected,  although  the  defendant  also 
proposed  to  show  that  at  the  time  the  words  were  uttered  a  public  investigation  was 
going  on,  involving  an  inquiry  into  the  plaintiff's  conduct,  and  was  a  subject  of 
public  remark.  (Knight  v.  Foster,  39  N.  H.  576;  and  see  RegnieY  v.  Cabot,  2  Gil- 
man,  84.)  Evidence  of  the  defendant's  suspicions  on  the  subject  is  inadmissible. 
(Henson  v.  Veatch,  1  Blackf.  369.) 

3  Wetherbee  v.  Marsh,  'JO  N.  Hamp.  561 ;  Case  v.  Marks,  20  Conn.  248;  Bridgman 
V.Hopkins,   34  Verm.  (6   Shaw)   532;  Van  Derveer  v.   SutphiD,  5  Ohio,  N.  S.  393 ; 


624  EVIDENCE   FOE   DEFENDANT.  [Cll.    XVII. 

The  decisions  to  the  contrary  are  quite  numerous.1  "What 
two  or  three  persons  had  said  in  relation  to  plaintiff's 
character,  was  held  inadmissible.2  In  case  for  slander,  im- 
puting gross  ill-treatment  by  the  plaintiff  of  a  female; 
under  the  plea  not  guilty,  the  evidence  of  the  plaintiff 
showing  that  the  words  were  spoken  in  answer  to  an  in- 
quiry whether  he  had  not  imputed,  &c,  and  inquiry  by 
the  plaintiff  who  was  the  author  of  the  slander,  the 
defendant  replying  that  he  had  heard  of  the  imputation, 
and  that  the  report  was  current,  and  that  he  had  reason 
to  believe  it  true,  but  refused  to  give  up  the  reporter, 
held  that  the  defendant  might  show,  by  cross-examination, 
that  such  report  had  in  fact  prevailed,  and  was  a  topic  of 
conversation  before  the  uttering  of  the  words  by  the 
defendant.3  In  an  action  for  a  libel,  the  defendant,  to 
support  a  charge  against  the  plaintiff  of  having  set  up  and 
supported  an  infidel  club,  offered  evidence  that  a  club  to 
which  the  plaintiff  belonged  had  the  general  character  of 
an  infidel  club.  It  was  held  that  such  evidence  was  not 
admissible,  either  to  justify  or  mitigate  the  charge.4 


Young  v.  Slemons,  Wright,  124;  Knobel  v.  Fuller,  Peake  Ad.  Cas.  139;  Cook  v. 
Barkley,  1  Penn.  N.  J.  Rep.  163;  Smith  v.  Richardson,  Bull.  N.  P.  9  ;  Fuller  v.  Dean, 
31  Ala.  654;  Morris  v.  Barker,  4  Harring.  520;  Springstein  v.  Field,  Anthon,  185; 
Foot  v.  Tracy,  1  Johns.  45 ;  Henson  v.  Veatch,  1  Blackf,  369 ;  Commons  v.  Walters, 

I  Port.  323  ;  Fletcher  v.  Burroughs,  10  Iowa  (2  With.),  557  ;  and  see  Moyer  v.  Pine, 
4  Mich.  409  ;  Bradley  v.  Gibson,  9  Ma.  406 ;  Sheehan  v.  Collins,  20  HI.  325. 

1  Young  v.  Bennett,  4  Scam.  43 ;  Sanders  v.  Johnson,  6  Blackf.  50 ;  Fisher  v.  Pat. 
tison,  14  Ohio,  418;  Scott  v.  M'Kinnish,  15  Ala.  662;  Anthony  v.  Stephens,  10  Mis. 
254;  Haskins  v.  Lumsden,  10  Wis.  359;  Beardsley  v.  Bridgman,  17  Iowa,  290; 
Alderman  v.  French,  1  Pick.  1 ;  Bowen  v.  Hall,  12  Met.  232 ;  Hancock  v.  Stephens, 

II  Humph.  507  ;  Skinner  ads.  Powers,  1  Wend.  451 ;  Watkin  v.  Hall,  9  Best.  &  S.  279. 

In v.  Moor,  1  M.  &  S.  284,  the  defendant  was  permitted,  on  cross-examination 

of  a  witness  for  the  plaintiff,  to  ask  whether  he  had  not  heard  reports  of  plaintiff  being 
guilty  of  offenses  similar  to  the  offense  charged.  See  Taylor  on  Evidence,  315,  2d 
edit.,  where  the  English  authorities  are  collected,  and  are  by  the  author  said  to  pre- 
ponderate in  favor  of  the  reception  of  the  evidence  of  general  suspicion  in  mitigation. 
And  see  Wolmer  v.  Latimer,  1  Jurist,  19. 

2  Regnier  v.  Cabot,  2  Gilman,  34. 

3  Richards  v.  Richards,  2  Mo.  &  Rob.  567. 
1  Stow  v.  Converse,  4  Conn.  17. 


§  412-13.]  IN   MITIGATION.  625 

§  412.  The  defendant  may,  in  mitigation  of  damages, 
show  the  plaintiff's  standing  and  condition  in  society.1 

§  413.  The  declaration  of  a  defendant,  made  prior  to 
the  publication  complained  of,  may  be  given  in  evidence 
to  mitigate  the  damages ;  as  where  the  defendant  had  em- 
ployed  a  printer  to  print  the  libel  complained  of,  it  was 
held  that  he  might,  to  show  the  absence  of  ill-will,  and  to 
mitigate  damages,  prove  that  at  the  time  of  the  employ- 
ment he  instructed  the  printer  to  keep  the  matter  as 
private  as  possible.2  But  declarations  or  acts  of  a  defend- 
ant, made  subsequently  to  the  publication  complained  of, 
cannot  be  received  in  mitigation.3  A  full  and  unqualified 
retraction  of  the  libel  complained  of,  is  admissible  in 
mitigation.4 


1  Lamed  v.  Buffington,  3  Mass.  546 ;  Bodwell  v.  Swan,  3  Pick.  376 ;  Howe  v.  Perry, 
15  Pick.  506.  The  Supreme  Court  of  Pennsylvania  held  in  an  action  of  slander  for 
charging  perjury,  evidence  of  plaintiff's  general  character  for  truth  was  admissible 
in  mitigation.     (1  Up.  Can.  Law  Jour.  N.  S.  248.) 

• 2  Taylor  v.  Church,  8  N.  Y.  452 ;  and  see  Stallings  v.  Newman,  26  Ala.  300 ;  Hagan 
v.  Hendry,  18  Md.  177 ;  Bond  v.  Douglass,  7  C.  &  P.  629 ;  Vinners  v.  Serell,  Id.  163 ; 
Inman  v.  Foster,  8  Wend.  602.  An  injunction  of  secrecy  upon  the  person  to  whom 
the  publication  was  made  held  not  to  be  a  defense.  (McGowen  v.  Monifee,  7  Monr. 
314.)  It  was  held  proper,  on  the  trial  of  an  indictment  against  the  editor  of  a  news- 
paper for  libel,  to  ask  a  witness  if  at  the  time  of  the  publication  the  defendant  was 
not  absent  and  knew  nothing  of  the  transaction.  (Commonwealth  v.  Buckingham , 
Thacher's  Crim.  Cas.  29.) 

*  Scott  v.  McKinnish,  15  Ala.  662 ;  Bradford  v.  Edwards,  32  Ala.  628.  In  Yeatea 
v.  Reed,  4  Blackf.  463,  it  was  held  that  defendant's  efforts  to  prevent  the  circulation 
of  the  libel  complained  of,  was  not  receivable  in  mitigation.  The  defendant  cannot, 
to  support  his  plea  of  justification,  give  evidence  of  transactions  or  conversations  be- 
tween himself  and  others,  to  which  the  plaintiff  was  not  privy.  (Jenkins  v.  Cocker- 
ham,  1  Iredell,  309 ;  and  see  Barfield  v.  Britt,  2  Jones'  Law  (N.  Car.)  41.)  And  where 
defendant  charged  plaintiff  with  being  a  thief,  a  rogue  and  a  swindler,  and  justified 
on  the  ground  that  plaintiff  had  bought  goods  of  him,  defendant,  and  resold  them  but 
had  not  paid  defendant  for  them,  held  that  defendant  could  not  prove  these  facts,  they 
not  being  known  to  the  persons  present  when  the  charge  was  made.  (Martin  v.  Loci, 
2  Fost.  &  F.  654;  and  see  Wakelin  v.  Morris,  Id.  27.) 

4  Hotchkiss  v.  Oliphant,  2  Hill,  510.  But  hesitation,  lurking  insinuation,  an  at- 
tempted perversion  of  the  import  of  the  language  of  the  first  libel,  or  a  substitution 
of  one  calumny  for  another,  only  aggravate  the  offense ;  and  if  the  publisher,  when 
advised  of  his  error,  hesitate  to  correct  it,  the  case  rises  into  a  case  of  premeditated 
wrong,  and  he  becomes  a  fit  subject  for  exemplary  punishment.     (Id.)     A  subsequent 


626  EVIDENCE   FOR    DEFENDANT.  [Ch.  XVII. 

§  414.  The  defendant  may  set  up,  in  mitigation  of 
damages,  that  he  made  the  publication  in  a  moment  of 
heat  and  passion,  induced  by  the  immediately  preceding 
acts  of  the  plaintiff.1  The  defendant  may,  therefore,  in 
mitigation,  prove  prior  publications  by  the  plaintiff  of  a 
provoking  character.2  Acts  or  publications  of  persons 
other  than  the  plaintiff  are  not  receivable  in  mitigation ; 
as  where  the  plaintiff's  father,  shortly  before  the  uttering 
of  the  slander,  used  irritating  language  to  the  defendant, 


explanation  and  qualification  of  the  slander  is  not  competent  evidence  under  a  plea  of 
justification.  (Luthan  v.  Berry,  1  Port.  110;  and  see  Alexander  v.  Harris,  6  Mumf. 
465.)  Defendant's  subsequent  assertions  of  the  truth  of  the  slander  is  not  evidence  of 
its  truth.  (Rice  v.  Withers,  9  Wend.  138.)  As  to  the  effect  of  a  withdrawal,  or  re- 
cantation, see  Lamed  v.  Buffington,  3  Mass.  546;  Brown  v.  Brown,  3  Ind.  518  ; 
Alderman  v.  French,  1  Pick.  19;  Kent  v.  Bonzey,  38  Maine,  (3  Heath),  435;  Mapes 
v.  Weeks,  4  Wend.  663 ;  6  &  7  Vict.  ch.  96  ;  8  &  9  Vict.  ch.  95.  In  Linney  v.  Mat- 
ton,  13  Texas,  449,  it  was  held  that  an  immediate  retraction  of  a  charge  made  orally, 
and  in  the  presence  of  all  who  heard  the  charge,  was  a  defense  to  an  action  founded 
on  such  charge;  and  see  Winchell  v.  Strong,  17  111.  59V.  Where  one  called  another 
a  rogue,  in  the  hearing  of  bystanders,  in  a  moment  of  irritation,  and  in  reference  to 
his  unwillingness  to  settle  a  debt  due  him,  and  no  injury  resulted  from  the  words,  it 
was  held  not  actionable.  (Artieta  v.  Artieta,  15  La.  An.  48.)  In  Alabama,  retrac- 
tion before  suit,  is,  by  statute,  made  mitigation ;  see  Bradford  v.  Edwards,  32  Ala. 
628. 

1  Dolevin  v.  Wilder,  34  How.  Pra.  Rep.  448.  Defendant  cannot  set  up  any  act  or 
declaration  of  plaintiff's  in  mitigation  unless  such  act  or  declaration  formed  part  of 
the  res  gesta.  (Richardson  v.  Northrup,  56  Barb.  105.)  A  defendant  who  would 
rely  upon  heat  of  passion  in  mitigation  of  damages,  must  set  forth  the  acts  and  lan- 
guage of  the  plaintiff  which  he  claims  caused  his  passion.  It  is  not  sufficient 
to  allege  simply  that  he  uttered  the  words  in  heat  of  passion  caused  by  plaintiff.  In 
slander,  if  the  words  were  spoken  through  the  heat  of  passion,  or  under  excitement 
produced  by  the  immediate  provocation  of  the  plaintiff,  such  excitement  or  passion 
may  be  shown  in  mitigation  of  damages;  and  in  Iowa,  without  alleging  them 
specifically  in  the  answer.  (McClintock  v.  Crick,  4  Iowa,  453 ;  and  see  Steever 
v.  Beehler,  1  Miles,  146;  Brown  v.  Brooks,  3  Ind.  518;  Larned  v.  Buffington,  3  Mass. 
546 ;  Mousler  v.  Harding,  38  Ind.  176. 

The  fact  that  the  slanderous  words  were  spoken  in  a  sudden  heat  of  passion,  or 
under  great  provocation,  should  be  considered  by  the  jury  in  mitigation  of  damages. 
(Powers  v.  Presgroves,  38  Miss.  227  ;  Ranger  v.  Goodrich,  17  Wis.  78 ;  Duncan  v. 
Brown,  5  B.  Monr.  186;  Traphagen  v.  Carpenter,  1  City  Hall  Reporter,  55;  Else  v. 
Ferris,  Anthon,  23.) 

a  Thomas  v.  Dunaway,  30  111.  373 ;  Wakley  v.  Johnson,  1  Ry.  &  Mo.  422.  The 
defendant  may,  in  mitigation,  give  evidence  that  the  plaintiff  has  been  in  the  practice 
of  vilifying  him,  and  that  he  was  influenced  to  use  the  language  with  which 
he  is  charged  by  the  abuse  of  the  plaintiff,  and  that  may  be  shown  by  the  defendant's 


§  415.]  IN    MITIGATION.  •   627 

held  that  that  fact  was  inadmissible  in  mitigation.1 
Where,  in  an  action  for  libel,  the  defendant  sought  to 
give  in  evidence  libellous  publications  by  the  plaintiff  of 
the  defendant  in  newspapers  and  periodical  works ;  held, 
that  to  make  such  admissible,  it  must  be  shown  that  they 
came  to  the  knowledge  of  the  party  supposed  to  be  pro- 
voked thereby,  and  that  the  court  could  not  infer  from 
the  mere  depositing  newspapers  in  the  defendant's  name, 
as  editor,  at  the  stamp-office,  under  38  Geo.  IH.,  c.  78, 
§  17,  that  they  were  published  by,  or  came  to  the  knowl- 
edge of,  the  defendant.2 

§  415.  All  the  circumstances  connected  with  the  pub- 
lication complained  of  should  go  to  the  jury ; 3  and  there- 
fore, in  an  action  for  a  libel,  the  defendant  may  give  in 
evidence  a  fanner  publication  by  the  plaintiff,  to  which 
the  libel  was  an  answer,  to  explain  the  subject-matter, 
occasion  and  intent  of  the  defendant's  publication,  and  in 
mitigation  of  damages.4  And  a  previous  publication  by 
the  plaintiff,  to  which  the  alleged  libel  is  an  answer,  is 

declaration.  The  jury  is  to  determine  whether  the  language  which  the  defendant 
used  was  used  because  of  such  provocation  received  from  the  plaintiff.  (Botelar  v. 
Bell,  1  Md.  173.)  The  effect  of  parties  publishing  defamatory  matter  one  against  the 
other  should  be  to  give  nominal  damages  only.  (Pugh  v.  McCarty,  40  Geo.  444 ; 
Hibbs  v.  Wilkinson,  1  Fost.  &  F.  608  ante,  p.  422,  n.  3.  As  to  provocation  in  miti- 
gation, see  Hackett  v.  Brown,  2  Heiskell  (Tenn.)  264.     But  see  cases  in  note  4,  infra. 

1  Underhill  v.  Taylor,  2  Barb.  348. 

a  Watts  v.  Fraser,  2  Nev.  &  P.  157.  Always,  where  mitigating  circumstances  are 
offered  in  evidence  for  the  purpose  of  repelling  the  presumption  of  malice,  it  should 
be  shown  that  the  defendant  knew  of  them  at  the  time  he  made  the  charge.  (Swift 
v.  Dickerman,  31  Conn.  285  ;  Dolevin  v.  Wilder,  34  How.  Pra.  Rep.  488;  Reynolds 
v.  Tucker,  6  Ohio,  N.  S.  516.) 

'  Cook  v.  Barkley,  1  Penn.  N.  J.  Rep.  169. 

*  Hotchkiss  v.  Lathrop,  1  Johns.  286.  A  prior  publication  by  plaintiff  not 
admissible  in  justification.  (Id. ;  Southwick  v.  Stevens,  10  Johns.  443.)  Other 
libels  alleged  to  have  been  published  by  the  plaintiff  of  the  defendant,  not  relating  to 
the  same  subject,  are  not  admissible  in  evidence,  either  in  bar  of  the  action  or  in  miti 
gation  of  damages,  both  on  the  ground  that  the  plaintiff  had  no  notice  of  such, 
defense,  as  well  as  of  the  inconvenience,  by  leading  to  a  multiplicity  of  inquiries. 
(May  v.  Brown,  3  B.  &  Cr.  113;  4  D.  <fc  R.  670.)  See  Watts  v.  Eraser,  7  C.  &  P 
1  Mo.  &  Rob.  449 ;   note  1,  svpra. 


628  EVIDENCE    FOE    DEFENDANT.  [Ch.   XVII. 

admissible.  The  judge,  before  admitting  or  excluding  it, 
may  peruse  it,  in  order  to  decide  upon  its  character.1  And 
all  papers  referred  to  in  a  libel  may  be  admitted  for  the 
purpose  of  explanation  and  interpretation.2  A  postscript 
is  admissible.3  Prefixing  a  previous  publication  as  a  text 
to  the  libel  complained  of,  does  not  per  se  make  such  pre- 
vious publication  admissible  in  evidence.4 

§  416.  Controversies  between  the  plaintiff  and  defend- 
ant prior  to  -the  publication  complained  of,  and  having  no 
connection  with  the  subject-matter  of  the  publication,  can- 
not be  shown  to  mitigate  the  damages.5  Nor  are  previous 
publications  by  the  plaintiff  concerning  the  defendant  ad- 
missible in  mitigation,  unless  so  immediately  preceding 
the  publication  by  the  defendant  as  fairly  to  raise  the  pre- 
sumption that  the  defendant  made  the  publication  under 
the  impulse  of  the  provocation.6  The  defendant  may 
show,  in  mitigation,  that  he  was  provoked  to  the  publica- 
tion complained  of  by  some  contemporaneous  or  nearly 
contemporaneous  act  or  declaration  of  the  plaintiff.  Simply 
to  show  provoking  acts  or  declarations  by  the  plaintiff 
prior  to  the  publication  by  the  defendant,  is  not  sufficient.7 

1  Maynard  v.  Beardsley,  7  Wend.  560 ;  4  Wend.  336. 

8  Nash  v.  Benedict,  25  Wend.  645 ;  Mullet  v.  Hulton,  4  Esp.  248. 

8  Coleman's  Case,  2  City  Hall  Recorder,  49. 

4  Gould  v.  Weed,  12  Wend.  12.  A  subsequent  publication  cannot  be  given  in 
evidence  to  determine  the  character  of  a  publication,  whether  it  is  Ubellous  or  not. 
Two  articles,  to  be  so  used,  must  appear  simultaneously  in  the  same  paper  or  book. 
(Usher  v.  Severance,  2  App.  9.) 

*  Lester  v.  Wright,  2  Hill,  320.  In  an  action  of  slander  for  words  actionable  in 
themselves,  claiming  general  damages  only  ;  held,  that,  under  the  plea  of  the  general 
issue,  evidence  that,  during  the  six  years  prior  to  the  trial,  inveterate  feelings  of  hos- 
tility had  existed  between  the  plaintiff  and  defendant,  and  that  the  plaintiff  had  taken 
every  opportunity  to  irritate  the  defendant,  was  inadmissible.  (Porter  v.  Henderson, 
11  Mich.  20.) 

6  Maynard  v.  Beardsley,  7  Wend.  560;  4  Id.  336;  Gould  v.  Weed,  12  Id.  12; 
Child  v.  Homer,  13  Pick.  503  ;  Walker  v.  Winn,  8  Mass.  248.  A  question  to  a  witness, 
as  to  the  state  of  feeling  between  the  parties,  must  refer  to  the  time  of  the  slanderous 
speaking.     (Justice  v.  Kirlin,  IV  Ind.  588.) 

7  Moore  v.  Clay,  24  Ala.  235 ;  Watts  v.  Fraser,  2  Nev.  &  P.  157;  7  Ad.  &  El.  223  ; 
1  Jurist,  671 ;  1  M.  &  Rob.  449;  Moore  v.  Oastler,  1  M.  <fc  Rob.  451,  n;  Bourland 
v.  Eidson,  8  Gratt.  27. 


§  417.]  IN   MITIGATION.  629 

In  an  action  for  a  libel,  in  which  the  plaintiff  was  charged 
with  being  "  a  degraded  scoundrel,  liar  and  blackguard," 
it  was  held  that  the  defendant  might  be  allowed  to  prove, 
under  the  general  issue,  in  mitigation  of  damages,  that  the 
plaintiff,  shortly  prior  to  the  publication  of  said  libel, 
charged  the  defendant  with  false  swearing  in  a  cause  in 
which  he  was  a  witness.1  In  an  action  of  slander  against 
husband  and  wife,  for  words  spoken  by  the  wife,  it  is  not 
competent  for  the  defendants  to  prove  that  circumstances 
relating  to  the  plaintiff's  conduct  were  communicated  to 
the  husband  before  the  slanderous  words  were  uttered.2 

§  417.  The  defendant  cannot,  to  mitigate  damages,  give 
evidence  of  his  poverty ; 3  of  his  apparent  good  humor  at 
the  time  of  speaking  the  words;4  that  no  one  believed 
anything  he  said ; 5  that  the  defendant  was  not  the  author 
of  the  slander,  and  that  he  named  the  author  at  the  time 
of  the   publication ; 6   that    the  publication   did   not    in- 


1  Davis  v.  Griffith,  4  Gill.  &  Johns.  342. 

2  Petrie  v.  Rose,  5  Watts  &  Serg.  364. 

3  Myers  v.  Malcolm,  6  Hill,  292;  Palmer  v.  Haskins,  28  Barb.  90;  and  see  cases 
cited,  note  p.  602,  n.  4,  ante. 

*  Weaver  v.  Hindreck,  30  Mis.  (9  Jones),  502 ;  see  ante,  p.  434,  n.  3.  Defend- 
ant being  intoxicated  at  the  time  of  publication,  said  to  be  a  matter  of  mitigation 
(Howell  v.  Howell,  10  Ired.  84.) 

6  Howe  v.  Perry,  15  Pick.  506;  contra,  Gates  v.  Meredith,  7 1nd.  440.  An  impu- 
tation of  theft,  made  in  the  presence  of  one  witness  only,  who  stated  that  he  did  not 
believe  the  charge,  held  no  reason  far  restricting  the  damages  to  a  nominal  amount. 
(Markham  v.  Russell,  12  Allen,  573.)  The  fact  that  the  words  were  spoken  in  the 
presence  of  one  witness  only,  was  held  to  be  receivable  in  mitigation  in  Traphagen  v. 
Carpenter,  1  City  Hall  Reporter,  55. 

6  Treat  i>.  Browning,  4  Conn.  408;  contra,  Bennett  v.  Bennett,  6  C.  &  P.  588; 
Easterwood  v.  Quinn,  2  Brev.  64.  But  see  ante,  §  210.  Under  some  circumstances, 
the  defendant  may  prove,  in  mitigation,  that  he  derived  his  information  from  others. 
(Kennedy  v.  Gregory,  1  Binn.  85  ;  Galloway  v.  Courtney,  10  Rich.  Law  (S.  Car.)  414; 
but  see  Thompson  v.  Bowers,  1  Doug.  321  ;  Anthony  v.  Stephens,  1  Mis.  254.)  And 
from  whom  or  how  he  derived  his  information.  (Leister  v.  Smith,  2  Root,  24) ;  as 
that  the  charge  was  taken  from  the  journals  of  Congress  (Romayne  v.  Duane,  3  Wash. 
C.  C.  246);  or  copied  from  another  paper.  (Davis  v.  Cutbush,  1  Fost.  &  Fin.  487.) 
That  the  defendant  published  the  libel  on  the  communication  of  a  correspondent,  held 
not  admissible  in  mitigation.     (Talbutt  v.  Clarke,  2  M.  <fe  Rob.  312.)     Where  A.  pub- 


630  EVIDENCE    FOR    DEFENDANT.  [Cll.  XVII. 

jure,1  or  that  it  benefited  the  plaintiff; 2  or  that  others  had 
previously  published  the  same  words ; 3  a  declaration  of  the 
plaintiff  that  the  publication  did  him  no  injury ; 4  or  that 
he  believed  the  defendant  was  not  the  author  but  only  the 
repeater  of  the  slander ; 5  that  plaintiff  was  an  enemy  of 
his  (defendant's) ; 6  that  plaintiff  is  a  quarrelsome  person  ;7 
or  a  malicious  person ; 8  that  plaintiff  had  boasted  of  com- 
mitting offenses  of  a  like  character  with  that  charged ; 9 
that  plaintiff  was   in   the  habit   of  abusing  the   defend- 

lished  a  libel  taken  from  a  paper  published  by  B.,  as  an  extract  from  a  paper  pub- 
lished by  C,  it  was  held,  in  an  action  brought  by  C.  against  A.,  that  the  testimony  of 
D.  that  he  had  heard  A.,  before  he  published  the  libel,  ask  E.  whether  he  had  not 
seen  it  in  the  paper  of  C,  and  that  E.  answered  "  that  he  had,"  was  inadmissible  in 
mitigation  of  damages ;  but  that  E.  himself  should  be  produced,  if  his  declaration 
were  proper  evidence.  (Coleman  v.  Southwick,  9  Johns.  45.)  In  an  action  for  the 
publication  of  a  libel,  the  defendant  asked  a  news  collector,  who  wrote  a  part  of  the 
article  complained  of,  "  What  inquiries  and  examinations  he  made,  and  what  sources 
of  information  he  applied  to,  before  making  the  communication"  which  tended  to 
charge  the  plaintiff  with  dishonesty  and  bad  faith  ?  Held,  that  the  question  was  in- 
competent, and  that  the  defendant,  as  a  foundation  for  such  question,  could  not  prove 
that  there  was  a  general  anxiety  in  the  community  in  regard  to  the  facts  stated  in  the 
publication.  (Sheckell  v.  Jackson,  10  Cush.  (Mass.)  25.)  And  see  Bond  v.  Kendall, 
36  Verm.  741,  where  it  was  held  that  the  defendant  could  not  show  the  libel  was  a 
letter  to  B.  containing  the  result  of  inquiries  made  concerning  the  plaintiff  at  request 
of  B. 

1  Titus  v.  Sumner,  44  N.  Y.  266.  On  the  trial  of  an  action  for  slander  it  is  not 
error  to  exclude  a  general  offer  by  defendant  to  prove  that  plaintiffs  reputation  was 
not  affected  by  the  publication.  The  evidence  would  be  a  mere  opinion  of  the  wit- 
ness, and  is  not  directed  to  the  plaintiffs  want  of  previous  good  character  as  affecting 
the  amount  of  the  recovery.     (Id.) 

3  Calhoun  v.  M'Means,  1  N.  &  M.  422  ;  Rex  v.  Woodfall,  Lofft,  776.  No  man  shall 
set  up  his  own  iniquity  as  a  defense  any  more  than  as  a  cause  of  action.  (Mansfield, 
Ch.  J.,  Montefiori  v.  Montefiori,  1  W.  Black.  363 ;  see  Stewart  v.  Wilkinson,  1  Law 
Times,  81 ,  Fry  v.  Bennett,  28  N.  Y.  328. 

3  Saunders  v.  Mills,  6  Bing.  213,  ante. 

4  Porter  v.  Henderson,  11  Mich.  20.  In  Quigley  v.  Phila.  <fec.  R.  R.  Co.  (21  How. 
U.  S.  Rep.  209),  the  defendants  gave  evidence  of  declarations  by  the  plaintiff  that 
the  matters  out  of  which  the  libel  arose  had  improved  his  business.  See  Ostrom  v. 
Calkins,  5  Wend.  263 ;  and  ante,  note  9,  p.  489. 

6  Evans  v.  Smith,  5  Monr.  363. 

6  Craig  v.  Catlet,  5  Dana,  325. 

7  Hosley  v.  Brooks,  20  111.  115 ;  M' Alexander  v.  Harris,  6  Mumf.  465. 

8  Forshee  v.  Abrams,  2  Clarke  (Iowa),  572. 

9  Pallet  v.  Sargent,  36  N.  Hamp.  496. 


§  417.]  IN   MITIGATION.  631 

ant ;  *  that  plaintiff  was  a  common  libeller ; 2  that  plaintiff 
has  sometimes  published  slander  of  other  persons  not  the 
defendant;3  or  has  threatened  so  to  do;4  a  former  recov- 
ery ; 5  that  defendant  declared  he  could  prove  the  truth  of 
the  words ; 6  or  in  an  action  for  slander  of  husband  and 
wife,  that  they  lived  unhappily  together ; 7  or  kept  a  dis- 
ordely  house.8 

1  Goodbread  v.  Leadbitter,  1  Dev.  &  Bat.  12;  Wakley  v.  Johnson,  1  Ry.  &,  M. 
422;  May  v.  Brown,  3  B.  <fc  Cr.  113;  M' Alexander  v.  Harri3,  6  Mumf.  465;  contra, 
see  Botelar  v.  Bell,  1  Md.  173.  In  a  suit  for  slander,  for  charging  the  plaintiff  with 
perjury,  the  defendant  cannot  show  that,  upon  a  wholly  different  occasion,  the  plain- 
tiff called  him  a  liar  and  a  perjured  wretch.     (Porter  v.  Henderson,  11  Mich.  20.) 

a  Maynard  v.  Beardsley,  7  Wend.  560;  4  Id.  336;  Gould  v.  Weed,  12  Id.  12. 

3  Forshee  v.  Abrams,  2  Clarke  (Iowa)  571. 

4  Cochran  v.  Butterfield,  18  N.  Hamp.  115. 

6  The  defendant  is  not  allowed  to  give  in  evidence,  in  mitigation  of  damages,  a 
former  recovery  of  damages  against  him,  in  favor  of  the  same  plaintiff,  in  another 
action  for  a  libel,  which  formed  one  of  a  series  of  numbers  published  in  the  same 
gazette,  and  containing  the  libellous  words  charged  in  the  declaration  in  the  second 
suit.  (Tillotson  v.  Cheetham,  3  Johns.  56.)  The  damages  are  not  to  be  lessened  by 
the  fact  that  the  plaintiff  has  an  action  against  other  persons  for  publishing  the  same 
language.    (Harrison  v.  Pearce,  1  Fost.  &  F.  567;  Frescoe  v.  May,  2  Id.  123.) 

6  James  v.  Clarke,  1  Iredell,  397. 

7  Anon.,  1  Hill  (S.  Car.)  251. 

8  Watson  v.  Moore,  2  Cush.  133. 


APPENDIX. 


APPENDIX. 


King's  Bench,  A.  D.,  1821. 
SWADLING   v.   TARPLEY. 

Where  a  servant  brings  an  action  for  an  alleged  false  character  given  of  him 
by  his  late  master,  the  latter  is  in  general  privileged,  and  to  sustain  the 
action,  malice  must  be  proved,  but  this  may  be  inferred  by  the  jury  from 
the  language  used  and  the  circumstances  under  which  the  defamatory 
character  is  given. 

This  was  an  action  for  a  libel :  the  defendant  pleaded,  1.  The 
general  issue,  not  guilty ;  and  2.  A  justification  of  the  truth  of 
the  alleged  libel,  on  which  issue  was  joined.  At  the  trial  before 
Gakrow,  B.,  at  the  last  assizes  for  the  county  of  Oxford,  a  verdict 
was  found  for  the  plaintiff,  damages  £50. 

The  case  was  this  : — The  plaintiff  had  been  a  nursery  maid  for 
four  years  in  the  family  of  the  defendant,  a  magistrate  and  clergy- 
man, residing  in  the  county  of  Northampton  ;  three  months  after 
she  quitted  the  service,  a  lady,  to  whOm  she  had  hired  herself, 
wrote  to  the  defendant's  wife  for  the  plaintiff's  character,  wishing 
to  know  whether  she  had  been  found  honest,  sober,  and  steady, 
and  equal  to  undertake  plain  cooking  ?  To  this  letter  the  defend- 
ant sent  an  answer  to  the  following  effect : 

Madam, — 

Mrs.  Tarpley  being  unwell,  she  has  requested  me  to  answer 
your  letter.  Susan  Swadling  lived  as  nursery  maid  in  my  family 
for  more  than  four  years ;  and  I  think  it  my  duty  to  inform  you 
that  she  is  neither  honest,  sober,  nor  steady,  and  that  she  was 
turned  away  for  the  most  gross  and  improper  misconduct.  She 
is  a  most  wicked  and  profligate  woman.  It  is  impossible  for  me 
to  describe  the  gross  insolence  and  ingratitude  shown  by  her  to 
Mrs.  Tarpley  and  myself.  We  have  undoubted  proof  of  her 
going  to  the  man-servant's  bed  many  nights  for  months  before  she 
left  us.  One  servant  who  lived  with  us  for  many  years  has  left 
us  on  her  account.  I  am  glad  of  an  opportunity  of  exposing  this 
woman's  character.  A  more  vile  wretch  does  not  exist ;  I  know 
her  to  be  a  liar,  a  great  thief,  and  insolent  beyond  bearing.     She 


636  APPENDIX. 

has  been  guilty  of  a  criminal  intrigue  with  the  man-servant, 

David  S .     I  wish  you  to  read  this  letter  to  her  should  you 

see  her,  and  I  warn  you  upon  no  account  to  take  her  into  your 
service.     I  am,  &c. 

On  the  part  of  the  plaintiff,  the  man-servant  alluded  to  in  the 
letter,  and  mentioned  as  the  person  with  whom  she  had  had  an 
improper  intercourse,  was  examined,  and  he  positively  denied 
that  any  such  intercourse  had  ever  taken  place  between  them  ; 
and  he  further  said,  that  she  was  a  modest,  discreet,  and  well- 
behaved  young  woman.  He  admitted  that  she  had  been  dismissed 
for  insolence ;  but,  on  his  cross-examination,  nothing  came  out  to 
shake  his  testimony.  On  the  part  of  the  defendant,  evidence  was 
offered  in  support  of  the  justification  pleaded.  It  was  proved  by 
other  servants  in  the  family,  that  during  the  six  months  previous 
to  her  being  turned  away,  after  the  family  had  gone  to  bed,  she 
had  several  times  left  her  own  bed-room  and  gone  to  that  of  the 
man-servant ;  that  she  was  watched,  and  next  morning  seen  to 
come  out  of  his  room ;  that  on  one  occasion  one  of  the  servants 
being  disturbed  by  the  crying  of  a  child,  she  went  in  the  plaintiff's 
room  and  found  her  absent  from  her  bed ;  and  the  child  contin- 
uing to  cry,  she  was  seen  to  return  to  her  own  room  from  that  of 
the  man-servant's,  in  her  night-gown,  and  appeared  to  the  witness 
to  be  extremely  confused.  Upon  this  part  of  the  case  expressions 
of  strong  affection  for  the  man  were  proved  to  have  been  uttered 
by  her  repeatedly,  and  going,  to  a  certain  extent,  to  an  admission 
of  a  criminal  amour  subsisting  between  them.  In  addition  to  this, 
evidence  was  offered  affecting  her  character  for  honesty.  It  was 
proved  that  she  had  stolen  coffee  and  sugar,  the  property  of  her 
master ;  and  one  witness  deposed  to  her  having  stolen  a  pair  of  shoes. 
Other  evidence  was  offered  tending  to  show  that  she  was  a  person 
of  depraved  habits.  On  the  part  of  the  defendant  it  was  con- 
tended, 1.  That  the  letter  in  question  was  privileged;  2.  That 
there  should  have  been  evidence  of  express  malice  to  render  it 
actionable;  and  3.  That  the  weight  of  evidence  was  in  favor  of 
the  defendant,  and  substantially  justified  him  in  writing  such  a 
letter.  The  learned  judge  summed  up  the  whole  of  the  case  for 
the  jury,  and  left  it  for  them  to  say  whether  there  was  anything 
upon  the  face  of  the  libel  to  warrant  the  conclusion,  that  the  de- 
fendant was  influenced  by  malicious  motives.  If  they  were  satis- 
fied that  the  defendant  was  actuated  by  malicious  motives,  the 


APPENDIX.  637 

plaintiff  was  entitled  to  a  verdict,  notwithstanding  the  privilege 
which  the  law  threw  around  a  master  in  giving  the  character  of  a 
servant ;  and  notwithstanding  there  were  some  circumstances  in 
the  case  which,  to  a  certain  extent,  would  justify  a  strong  expres- 
sion of  opinion  concerning  the  plaintiff's  character  and  conduct. 
The  jury  found  their  verdict  for  the  plaintiff,  damages  £50. 

G.  Cross  now  moved  for  a  rule  to  show  cause  why  the  verdict 
should  not  be  set  aside  and  a  new  trial  granted.  He  made  two 
points ;  1.  That  to  sustain  this  action  there  must  be  evidence  of 
express  malice,  for  that  such  a  letter  is  privileged  when  written 
honestly,  though  with  heat  and  intemperance ;  and  2d.  That  the 
verdict  was  against  the  weight  of  evidence.  He  insisted  that 
there  was  nothing  in  proof  to  show  that  the  defendant  was  influ- 
enced by  malicious  motives;  on  the  contrary,  all  the  evidence 
went  to  show  that  he  was  justified  in  what  he  had  written. 
Undoubtedly  the  letter  was  a  very  strong  one  ;  but  in  such  cases- 
as  this  the  court  would  not  too  nicely  scan  the  language  of  a 
master  in  giving  the  character  of  a  servant  who  certainly  had 
been  guilty  of  such  conduct  as  that  proved  in  evidence.  The  in- 
terests of  society  required  that  an  unrestrained  communication 
should  be  allowed  in  such  cases;  and  a  little  unguarded  warmth, 
proceeding  from  an  improper  motive,  should  not  itself  be  a  suffi- 
cient foundation  for  an  action,  supposing  the  defendant  had  gone 
a  little  too  far,  and  had  given  the  plaintiff  a  character  which, 
strictly  speaking,  was  unmerited,  still,  considering  the  privilege 
which  the  law  gave  a  master,  ought  not  to  be  broken  in  upon, 
when,  by  so  doing,  the  most  mischievous  consequences  to  society 
must  ensue.  The  jury  were  not  at  liberty  from  the  mere  libel 
itself  to  infer  that  the  defendant  was  influenced  by  malice,  be- 
cause upon  that  subject  some  express  and  positive  evidence  should 
have  been  given.  It  must  be  admitted  that  the  case  had  fairly 
gone  to  the  jury,  including  this  proposition,  that  they  were  to 
consider  whether  the  defendant,  at  the  time  he  wrote  the  letter, 
had  reason  to  believe  that  the  facts  which  he  stated  were  true. 
He  referred  to  Edmonson  v.  Stephenson,  Bull.  N.  P.  8 ;  it  was 
there  said,  that  where  words  are  spoken  in  confidence,  and  with- 
out malice,  no  action  lies  ;  therefore,  where  A,  a  servant,  brought 
an  action  against  her  former  mistress,  for  saying  to  a  lady,  who 
came  to  inquire  for  the  plaintiff's  character,  that  she  was  saucy 
and  impertinent,  and  often  lay  out  of  her  own  bed,  but  was  a 
clean  girl,  and  could  do  her  work  well ;    though  the  plaintiff 


638  APPENDIX. 

proved  that  she  was  by  this  means  prevented  from  getting  a  place, 
yet  Lord  Mansfield  held  that  this  was  not  to  be  considered  as  an 
action  in  the  common  way,  for  defamation  by  words,  but  that  the 
gist  of  it  must  be  malice,  which  is  not  implied  from  the  occasion 
of  speaking,  but  should  be  directly  proved  ;  that  it  was  a  confi- 
dential declaration,  and  ought  not  to  have  been  disclosed.  But  if, 
without  ground,  and  purely  to  defame,  a  false  character  should 
be  given,  it  would  be  a  proper  ground  for  an  action.  In  Weather- 
stone  v.  Hawkins,  1  T.  R.  110,  it  was  also  held  that  a  servant  can- 
not maintain  an  action  against  his  former  master  for  words  spoken, 
or  a  letter  written  by  him,  in  giving  a  character  of  the  servant, 
unless  the  latter  prove  the  malice  as  well  as  the  falsehood  of  the 
charge,  even  though  the  master  make  specific  charges  of  fraud ; 
he  also  referred  to  Rogers  v.  Clifton,  3  Bos.  &  Pul.  587,  and  on 
the  authority  of  these  cases,  coupled  with  a  review  of  all  the 
circumstances,  he  contended  that  the  defendant  was  entitled  to  a 
new  trial. 

Abbott,  C.  J. — I  am  of  opinion  that  in  this  case  there  ought 
to  be  no  rule  granted.  I  should  be  sorry  that  any  decision  in  which 
I  took  part,  should  have  the  effect  of  breaking  down  or  lessening 
that  which  I  consider  to  be  a  very  wholesome  rule  of  law,  namely, 
that  a  character  written  by  a  former  master  to  a  person  instituting 
an  inquiry,  with  a  view  to  take  a  dismissed  servant  into  his  ser- 
vice, is  to  be  considered  as  a  privileged  communication,  unless 
it  can  be  shown  in  some  way  that  the  statement  of  such  char- 
acter proceeds  from  a  vindictive  motive.  The  master  in  such 
cases  is  privileged  in  what  he  does ;  and,  in  my  mind,  it  is  of  the 
utmost  importance  to  society  that  he  should  be  so  privileged. 
The  error  is  too  often  committed  on  the  other  side ;  persons  are 
more  apt  to  conceal  the  faults  of  servants,  in  order  that  they  may 
not  be  deprived  of  another  service,  than  to  enlarge  and  expatiate 
upon  their  misconduct  in  a  manner  that  might  be  justifiable.  If, 
upon  reading  this  letter,  a  judge  could  take  upon  himself  to  say 
that  it  bore  nothing  upon  the  face  of  it  manifesting  a  vindictive 
motive,  I  should  think  he  would  have  been  bound  to  tell  the  jury 
that  it  was  a  privileged  communication,  and  upon  the  general 
issue  they  ought  to  have  found  a  verdict  for  the  defendant.  But 
I  cannot  say,  upon  reading  this  letter,  that  1  do  not  see  upon  the 
face  of  it  something  leading  me  to  suppose  there  was  an  improper 
motive  in  the  mind  of  the  defendant ;  and  if  the  contents  of  the 


APPENDIX.  639 

letter  were  such  as  to  make  it  a  point  in  any  reasonable  degree 
doubtful,  then  that  doubt  must  be  submitted  as  a  question  of  fact 
to  the  jury ;  it  must  be  for  them  to  say,  upon  the  view  of  the 
whole  case,  whether  this  letter  did  proceed  from  vindictive  mo- 
tives, or  was  founded  in  that  correct  and  proper  motive  which  the 
law  permits.  I  think  this  letter  does  contain  such  expressions  as 
were  fit  for  the  consideration  of  the  jury  upon  the  question  of 
malice,  and  the  question  was  so  presented  to  the  jury.  It  was 
left  to  them  to  say,  upon  the  whole  of  the  case,  whether  or  no 
they  thought  the  defendant  was  actuated  by  malicious  motives  at 
the  time.  They  have,  upon  the  view  of  the  whole  of  the  evi- 
dence, found  that  he  was  influenced  by  such  motives ;  and  the 
credit  due  to  the  witnesses  was  a  matter  peculiarly  for  their  con- 
sideration, and  I  cannot  say  that  that  they  have  come  to  a  wrong 
conclusion.  "We  are  not  to  take  it  for  granted  that  the  question 
was  not  fitly  left  to  them  as  a  question  for  their  consideration.  I 
am  of  opinion,  therefore,  that  we  ought  not  to  disturb  this 
verdict. 

Baylet,  J. — It  appears  to  me  that  this  question  was  most 
properly  left  to  the  jury.  The  point  upon  the  general  issue  was, 
whether,  at  the  time  the  letter  was  written,  there  was  malice  in 
the  mind  of  the  defendant  in  writing  it.  He  is  fully  warranted 
in  giving  an  answer  to  the  questions  which  are  put  to  him  ;  and, 
in  a  temperate  manner,  stating  everything  which  may  have  a  fair 
tendency  to  enable  the  person  to  whom  the  letter  is  written 
to  exercise  a  discreet  judgment  upon  the  subject.  But  looking 
at  this  letter,  it  appears  to  me  there  is  a  degree  of  heat  and 
warmth  and  particularity  in  it,  which  was  not  called  for  by  the 
application  made  for  the  character  of  the  plaintiff;  and  that  being 
left  for  the  consideration  of  the  jury,  it  appears  to  me  to  have 
been  the  proper  point  for  their  determination  on  the  general  issue. 
Upon  the  other  question,  whether  the  facts  were  true  or  not,  that 
would  depend  upon  the  credit  given  by  the  jury  to  the  witnesses. 
There  was  conflicting  evidence  on  the  one  side  and  the  other ; 
there  was  the  evidence  of  the  man-servant,  on  the  one  hand  ;  and 
they  had  the  opportunity  of  hearing  his  testimony,  and  seeing 
the  manner  in  which  it  was  delivered.  There  were  several  wit- 
nesses certainly  on  the  part  of  the  defendant,  and  after  hearing 
their  testimony,  the  jury  had  an  opportunity  of  seeing  on  which 
side  the  balance  of  truth  lay.     If  it  had  been  suggested  to  us  that 


640  APPENDIX. 

the  learned  judge  had  been  dissatisfied  with  the  conclusion  to 
which  the  jury  came,  it  would  have  been  right  for  us  to  have 
made  some  application  to  him  upon  the  subject ;  but  I  do  not 
find  that  anything  of  that  kind  is  suggested.  Not  knowing  that 
there  is  any  dissatisfaction  in  the  mind  of  the  learned  judge,  we 
cannot  act  upon  the  notion  that  there  is  any  such  dissatisfaction 
existing. 

Holeoyd,  J. — In  cases  of  this  kind,  the  proof  certainly  lies 
upon  the  party  bringing  the  action,  where  the  alleged  slander, 
whether  by  words  or  in  a  letter,  proceeds  in  consequence  of  an 
application  to  a  master  for  the  character  of  a  dismissed  servant, 
to  show  that  there  was  malice  in  the  mind  of  the  defendant, 
either  by  direct  evidence,  or  by  some  other  circumstances  from 
which  malice  can  be  collected.  In  the  absence  of  such  proof,  the 
defendant  would  be  either  entitled  to  a  verdict  or  the  plaintiff  must 
be  nonsuited.  If  that  were  the  case  in  the  present  action  the 
defendant  would  be  entitled  to  succeed,  and  the  court  would  grant 
a  new  trial.  But  the  letter  in  this  case  contained  such  matter  as 
was  sufficient  to  be  left  to  the  jury  to  say  whether  the  defendant 
was  influenced  by  malicious  motives ;  and  they  having  drawn  a 
conclusion  which  appears  to  me  to  have  been  perfectly  right,  I 
think  we  aught  not  to  disturb  their  verdict. 

Best,  J. — I  am  of  the  same  opinion.  This  motion  is  made  on 
two  grounds :  first,  that  this  letter  is  privileged  ;  and,  second,  that 
the  verdict  is  against  the  weight  of  the  evidence  in  the  cause. 
There  is  no  doubt  that  if  a  man  gives  a  character  of  a  servant,  it 
is  ■prima  facie  privileged,  and  the  party  injured  must  go  on  to 
show  that  the  character  was  given  from  motives  of  malice.  The 
learned  judge  at  the  trial  very  fairly  left  it  to  the  jury  to  consider 
whether  this  letter  was  written  with  a  malicious  intention.  He 
also  left  the  whole  of  the  evidence  for  their  consideration.  The 
letter  itself  imported  sufficient  matter  to  raise  the  question  of 
malice  or  no  malice,  in  this  respect  the  case  of  Bogers  v.  Clifton 
is  in  point.  No  doubt  the  defendant,  as  a  clergyman  and  a  magis- 
trate, might  be  very  justly  incensed  at  the  proceedings  of  the 
plaintiff  in  the  bosom  of  his  own  family ;  but  if  he  exceeded  the 
bounds  of  discretion  in  the  expression  of  his  opinion,  he  must  be 
answerable  for  the  consequences, 

Rule  re/used. 


APPENDIX.  641 

King's  Bench,  A.  D.,  1822. 
KING  v.  TOWNSEND. 

A  voluntary  affidavit  made  before  a  justice  of  the  peace,  is  not  a  judicial 
proceeding,  and  therefore  if  such  an  affidavit  contains  libellous  matter,  it 
is  actionable. 

To  describe  a  man  as  an  informer  in  such  a  publication  is  libellous. 

Where  special  damages  was  laid,  in  that  A.  B.  had  wholly  ceased  to  deal  with 
the  plaintiff",  by  reason  of  the  libel  complained  of,  and  it  was  proved  only 
that  she  had  not  dealt  with  him  to  so  great  an  extent  as  before :  Held, 
that  this  was  sufficient  evidence  of  special  damage  to  sustain  the  declara- 
tion. 

Action  for  a  libel  contained  in  an  affidavit  voluntarily  made 
by  the  defendant,  before  a  magistrate,  imputing  to  the  plaintiff 
that  he  had  given  information  to  the  commissioners  of  customs, 
that  one  Decima  Barber,  a  milliner,  was  possessed  of  certain  un- 
customed goods,  which  were  in  fact  seized,  whereby  the  plaintiff', 
who  carried  on  the  business  of  a  silk  mercer,  sustained  special 
damage,  by  reason  that  the  said  Decima  Barber  wholly  ceased  to 
deal  with  the  said  plaintiff  in  consequence  of  such  slander.  Plea, 
not  guilty,  and  issue  joined. 

After  proof  was  given  of  the  publication  of  the  libel,  Mrs. 
Decima  Barber  was  called  to  prove  the  special  damage.  She 
deposed  that  previous  to  the  publication  of  this  libel  she  had 
dealt  almost  entirely  with  the  plaintiff,  for  such  articles  of  silk  as 
she  required  in  her  business ;  but  that  since  the  publication,  be- 
lieving that  the  plaintiff  had  been  the  person  who  caused  informa- 
tion to  be  given  against  her  to  the  Customs,  she  had  ceased  to  deal 
with  him  to  so  large  an  extent  as  formerly.  She  still  dealt  with 
him,  but  not  so  largely  as  before  the  publication. 

Chitty,  for  the  defendant,  took  three  objections  to  the  plain- 
tiffs right  to  maintain  this  action  :  1.  This  alleged  libel,  being  in 
the  form  of  an  affidavit  sworn  before  a  justice  of  the  peace,  it 
must  be  considered  as  a  judicial  proceeding,  and  therefore  not 
the  subject  of  an  action  for  libel  (4  Co.  14,  and  1  Saunders,  132). 
2.  Supposing  it  not  to  be  a  judicial  proceeding,  still,  as  it  only 
imputed  to  the  plaintiff  that  he  was  an  informer,  that  is  not 
libellous ;  for,  however  obnoxious  the  character  of  an  informer 
may  be,  yet  it  is  the  duty  of  every  good  subject  to  put  the  law  in 
force,  by  giving  such  information  as  may  bring  offenders  to 
punishment ;  and  therefore  it  is  not  libellous  to  call  a  man  an 
informer.     And,  3.  The  allegation  of  special  damage  in  this  de- 


642  APPE1NTUX. 

claration  is  not  made  out.  The  averment  is,  that  by  reason  of 
this  libel,  Mrs.  Decima  Barker  wholly  ceased  to  deal  with  the 
plaintiff.  Now,  that  is  not  so ;  for  she  still  continued  to  deal 
with  him,  though  not  to  the  same  extent  as  formerly  ;  and  there- 
fore this  averment  is  not  sustained  if  she  dealt  with  him  for  any- 
thing. 

Abbott,  C.  J. — I  am  of  opinion  that  this  action  is  maintain- 
able. First,  I  think  this  affidavit  is  not  a  judicial  proceeding, 
for  it  is  the  mere  voluntary  affidavit  of  the  defendant ;  and  if  such 
an  affidavit  were  to  be  considered  as  a  judicial  proceeding,  and 
therefore  privileged,  it  would  afford  a  very  easy  recipe  for  a  libeller 
to  traduce  the  characters  of  the  most  innocent  persons.  Second, 
I  think  that  to  designate  a  man  as  an  informer,  in  a  publication 
like  this,  if  done  maliciously  (which  is  for  the  jury),  it  is  libellous 
in  a  very  offensive  degree,  and  may  be  the  subject  of  an  action. 
And,  Third,  I  have  no  doubt  that  proof  of  Mrs.  Decima  Barber 
having  ceased  to  deal  with  the  plaintiff  to  any  extent,  in  conse- 
quence of  the  publication  of  this  libel,  will  be  sufficient  proof  of 
special  damage  to  sustain  this  declaration  ;  and  it  is  for  the  jury 
to  say  what  damages  they  will  give  under  the  circumstances  of 
the  case. 

The  jury  found  for  the  plaintiff,  damages  £20. 

Chiity,  in  Hilary  term,  moved  to  arrest  the  judgment  on  the 
same  ground,  but  the  court  refused  the  rule. 


Sittings  m  Middlesex,  A.  D.,  1822. 
FOOTE   v.   ROWLEY. 

Declaration  for  words  imputing  that  the  plaintiff  had  murdered  his  infant 
daughter,  means  his  legitimate  daughter,  and  it  appearing  that  the  daughter 
of  and  concerning  whom  the  words  were  spoken  was  an  illegitimate  child 
of  the  plaintiff:  Held,  that  the  declaration  was  ill. 

Sed  qu.  As  the  words  were  spoken  by  an  apothecary  who  had  attended  the 
child  in  the  small-pox,  were  they  actionable,  it  not  appearing  that  they 
were  meant  in  a  criminal  sense  ? 

This  was  an  action  for  defamatory  words,  imputing  to  the 
plaintiff  that  he  had  murdered  his  infant  daughter.     Plea,  not 


APPENDIX.  643 

guilty,  and  issue  thereon.  The  words  set  out  were,  "  You  have 
murdered  your  little  girl."  "  This  child  is  murdered."  "He  has 
murdered  his  daughter." 

The  plaintiff  had  lost  his  child  in  the  small-pox;  the  de- 
fendant, a  surgeon  and  apothecary,  had  attended  the  child  during 
her  illness,  and  it  was  alleged  that  the  defendant  had  said  of  the 
plaintiff,  of  and  concerning  the  child,  that  he  had  murdered  his 
daughter,  &c.  It  appeared  in  evidence  that  the  daughter  was  not 
born  in  wedlock,  although  the  plaintiff  was  a  married  man.  The 
declaration  described  the  child  generally  as  being  "  the  infant 
daughter  of  the  said  plaintiff  P 

Scarlett,  for  the  defendant,  objected  that  the  plaintiff  must  be 
nonsuited.  The  child  was  stated  in  the  declaration  to  be  the 
infant  daughter  of  the  plaintiff;  now  the  presumption  of  law  was 
that  the  child  was  born  in  wedlock  ;  but  the  fact  was  otherwise, 
and  that  fact  should  have  been  stated  in  the  declaration.  Suppos- 
ing the  words  themselves  were  actionable,  the  illegitimacy  of  the 
daughter  would  have  been  no  objection ;  but  the  illegitimacy  ought 
to  have  been  averred. 

Gurney  and  Long,  contra,  endeavored  to  answer  the  objection, 
sed  per. 

Abbott,  C.  J. — This  is  a  fatal  objection.  The  fact  of  the  ille- 
gitimacy ought  to  have  been  stated,  in  the  declaration  the  child 
is  described  as  the  plaintiff's  infant  daughter ;  now  that  imports 
his  legitimate  daughter,  but  the  fact  is  not  so.  The  words  might 
have  been  set  out  with  a  colloquium  of  and  concerning  "  a  certain 
illegitimate  child  of  the  said  plaintiff."  There  must  therefore  be 
a  nonsuit.  But  1  do  not  intimate  that  the  plaintiff  may  bring 
another  action,  and  avoid  this  objection;  for  then  the  question 
would  be,  in  what  sense  these  words  were  used  ?  Unless  they  were 
used  by  the  defendant  in  a  criminal  sense,  they  would  not  be 
actionable. 

Nonsuited. 


King's  Bench,  A.  D.,  1822. 
MARTINERE   v.    MACK  AY  ET  UX. 

Saying  of  the  plaintiff  and  one  P.  S.,  "  I  dare  say  they  have  got  some  of  the 
silver  spoons  in  their  pockets,"  is  not  actionable  without  an  innuendo  show- 
ing that  the  words  import  a  felonious  stealing. 


644  APPENDIX. 

Where  some  counts  in  a  declaration  are  good  and  some  bad  in  law,  and 
general  damages  are  given,  the  court  will  arrest  the  judgment  in  toto. 
Bed  qiuere,  whether  a  venire  de  novo  may  not  be  awarded  on  payment  of 
costs. 

This  was  an  action  for  words  of  slander,  imputing  to  the 
plaintiff  that  she  had  been  guilty  of  theft.  The  declaration  con- 
tained a  great  many  counts.  At  the  trial  before  Holeoyd,  J.,  at 
the  Westminster  sittings  after  last  Trinity  term,  A.  D.  1 822,  a 
verdict  was  found  for  the  plaintiff  on  the  whole  declaration,  with 
£50  damages.  In  Michaelmas  term  a  rale  nisi  was  obtained  for 
arresting  the  judgment,  on  the  ground  that  the  eleventh  count 
did  not  allege  any  actional  words,  and  the  damages  found  by  the 
jury  being  on  the  whole  declaration,  the  judgment  could  not  be 
entered  up. 

Piatt  now  showed  cause  against  the  rule.  The  objection 
arises  upon  the  eleventh  count,  on  the  ground  that  there  is  no 
innuendo  to  give  the  words  there  set  out  an  actionable  sense. 
The  plaintiff  had  been  a  servant  in  the  family  of  the  defendant, 
and  the  defamatory  words  declared  upon  were  used  by  the  de- 
fendant's wife,  of  and  concerning  the  plaintiff,  in  giving  her  a 
character  to  a  new  mistress.  In  order  to  support  the  eleventh 
count,  the  plaintiff  is  at  liberty  to  pray  in  aid  the  introductory 
averment  in  the  first  count ;  that  averment  is  this :  "  The  de- 
fendant Jane,  contriving  and  intending  to  injure  the  plaintiff  in 
her  good  name  and  credit,  and  to  bring  her  into  great  scandal, 
and  to  cause  it  to  be  suspected  and  believed  that  she  was  a  thief, 
and  a  person  liable  and  subject  to  the  pains  and  penalties  inflicted 
upon  persons  convicted  of  robbery  and  theft,  falsely  and  maliciously 
spoke  of  and  concerning  the  plaintiff  and  one  P.  S.  the  following 
false,  malicious,  and  defamatory  words : "  The  words  set  out  in 
the  eleventh  count  are  these  :  "  I  dare  say  they  have  got  some  of 
the  silver  spoons  in  their  pockets."  Now  the  question  is,  whether 
these  words  are  actionable  without  an  innuendo,  giving  them  a 
point  and  meaning,  having  a  slanderous  import.  Standing  by 
themselves,  perhaps,  that  cannot  be  contended,  but  when  coupled 
with  the  averment  in  the  first  count,  they  are  sufficient  to  support 
the  judgment.  By  this  means  they  are  clearly  actionable.  He 
referred  to  Collier  v.  Galliard,  2  W.  Bl.  1062,  and  Peake  v.  Old- 
ham, Cowp.  275.  Supposing,  however,  that  this  count  is  bad, 
and  that  the  judgment  ought  to  be  arrested,  the  court  will  award 
the  plaintiff  a  venire  facias  de  novo,  to  assess  the  damages  upon 


APPENDIX.  645 

the  other  counts  of  the  declaration,  which  are  clearly  good ;  or 
the  verdict  may  be  amended  by  the  judge's  notes,  and  entered 
up  on  the  good  counts.  He  referred  to  Auger  v.  "Wilkins,  Barnes, 
478  ;  Smith  v.  Hayward,  Id.  480 ;  Eddowes  v.  Hopkins,  Dougl. 
377 ;  and  Grant  v.  Astle,  Id.  722. 

Tindal,  contra.  This  count  is  clearly  bad,  and  as  the  verdict 
is  taken  on  all  the  counts,  the  judgment  must  be  arrested  in  toto. 
The  words  set  out  are  perfectly  innocent,  and  cannot,  by  any  con- 
struction, have  an  actionable  sense  without  an  innuendo  giving 
them  a  mischievous  meaning.  The  plaintiff  might  have  the 
spoons  in  her  pocket  for  the  most  innocent  purpose,  and  not  with 
a  felonious  design  of  stealing  them.  She  might  put  them  there 
to  take  care  of — to  carry  them  to  the  silversmith — or  for  any 
other  purpose  quite  foreign  from  an  intention  of  thieving ;  and, 
therefore,  to  give  them  an  improper  sense,  there  should  have  been 
an  innuendo.  It  is  impossible  to  pray  in  aid  the  averment  in  the 
first  count,  and  couple  it  with  the  eleventh,  in  order  to  dispense 
with  the  necessity  of  an  innuendo.  The  eleventh  count  must  be 
perfect  in  itself,  and  cannot  be  helped  by  another  count  free  from 
objection.  If,  then,  one  count  is  bad,  the  judgment  must  be 
arrested  in  toto,  and  the  court  cannot  award  a  venire  de  novo. 
The  verdict  here  is  taken  on  the  whole  declaration,  and  it  is  impos- 
sible to  say  on  which  count  the  jury  would  assess  the  damages ; 
for  the  damages  may  be  compounded  of  all  the  counts,  the  good 
and  the  bad.  Suppose  there  should  be  a  second  jury,  how  can 
they  be  compelled  to  give  only  £50  upon  the  good  counts?  They 
may  take  it  into  their  heads  to  give  £500,  and  consequently  the 
defendant  may  sustain  a  prejudice  to  which  he  ought  not  to  be 
exposed.  Besides,  the  plaintiff  will  derive  no  advantage  from  a 
venire  de  novo,  for  as  the  proceedings  must  be  on  the  record,  there 
will  be  manifest  error,  and  therefore  there  must  be  a  great  deal  of 
unnecessary  expense  incurred.  The  case  of  Holt  v.  Scholefield,  6 
T.  R.  691,  is  an  authority  upon  this  case ;  for  there  it  was  held 
that  where  some  counts  in  a  declaration  are  good  and  some  bad 
in  law,  and  general  damages  are  given,  the  court  will  arrest  the 
judgment  in  toto,  and  will  not  award  a  venire  de  novo. 

Abbott,  C.  J. — I  am  clearly  of  opinion  that  the  eleventh  count 
of  this  declaration  is  bad,  and  that  the  judgment  must  be  arrested. 
It  cannot  be  said,  that  because  there  is  a  general  allegation  in  the 
first  count,  "  that  the  defendant  maliciously  intending  to  have  it 


646  APPENDIX. 

believed  that  the  plaintiff  was  a  thief"  that  will  make  words 
afterwards  introduced  into  other  counts  actionable,  which  are  not 
actionable  of  themselves ;  or  can  be  prayed  in  aid  of  other  counts 
which  are  clearly  defective.  The  words  themselves  must  reason- 
ably import  a  charge  concerning  some  matter  or  thing  which  will 
subject  the  party  accused  to  punishment.  I  cannot  say  that  these 
words  convey  an  allegation  that  the  spoons  had  been  stolen  by 
the  plaintiff.  The  allegation  is  that  the  defendant,  speaking  of 
certain  spoons  belonging  to  her,  said,  "  I  dare  say  the  plaintiff  has 
some  of  them  in  her  pocket."  Now,  she  might  have  them  in  her 
pocket  consistently  with  perfect  innocence  ;  and  it  is  impossible  to 
say  that  these  words  of  themselves  are  actionable.  Then  as  to 
the  venire  de  novo,  I  am  not  clear  that  we  can  grant  such  an 
application  as  a  matter  of  course.  If  it  is  granted,  it  must  be  on 
payment  of  costs,  and  the  plaintiff  will  consider  whether  she  will 
take  a  venire  subject  to  such  conditions,  and  liable  to  the  conse- 
quences which  may  possibly  follow  upon  a  writ  of  error. 

Batlet,  J. — I  am  of  opinion  that  this  judgment  must  be 
arrested.  My  difficulty  in  awarding  a  venire  de  novo  is,  that  it 
may  be  error  on  the  record,  and  that  would  be  subjecting  the 
plaintiff  to  a  great  deal  of  unnecessary  expense.  Besides,  I  do 
not  see  how  a  new  jury  are  to  be  restrained  in  giving  damages 
upon  the  other  counts  beyond  what  the  former  jury  have  given, 
and  that  would  be  exposing  the  defendant  to  consequences  which 
the  justice  of  the  case  may  not  require. 

The  rest  of  the  court  concurred  in  the  same  opinion. 

Rule  absolute  for  arresting  the  judgment. 


Additional  Note  to  Page  137,  ante. 
A  court  of  probate  has,  it  seems,  power  to  order  the  omission 
from  the  registry  of  a  will  of  any  defamatory  or  offensive  matter 
contained  in  such  will.  {Re  Honywood,  Law  Rep.  II,  Prob.  & 
Div.  251 ;  Re  Wartnaby,  1  Rob.  Ecc.  423  ;  Curtis  v.  Curtis,  3 
Add.  33  ;  Marsh  v.  Marsh,  1  Sw.  &  Tr.  528.) 

Additional  Note  to  Page  499,  ante. 
By  20  &  21  Yict.,  ch.  85,  a  woman  judicially  separated  from 
her  husband,  is  considered  a  femme  sole  for  the  purposes  of  con- 
tract, wrongs  and  injuries,  and  suing  and  being  sued  in  civil  pro- 
ceedings ;  and  her  husband  is  not  liable  for  her  contract  or  wrong- 
ful act  or  omission. 


INDEX. 


INDEX. 

[The  references  are  to  the  numbers  of  the  pages.] 


A 

ABATEMENT  of  action,  in  what  cases,  498. 

ABORTION,  charge  of  taking  medicines  to  produce,  actionable,  235. 
justification  of  charge  of  procuring,  557. 
See  Miscarriage. 
ABSOLUTE  RIGHT,  no  such  thing  as,  78,  88. 
ACCORD  and  satisfaction,  defense  of,  435. 

defense  of,  must  be  pleaded,  435. 
ACCOUNT  BOOKS,  charge  of  falsifying,  when  actionable,  266. 
ACCUSATION,  what  amounts  to  an,  199. 

ACTION,  how  commenced,  within  what  time,  and  in  what  court,  464. 
right  to  institute,  348». 
the  ordinary  remedy  for  a  wrong,  91. 
notice  of,  when  required,  464?i. 
for  words,  meaning  of,  67n. 
lies  for  words,  written,  which  not  actionable  if  only  spoken, 

67,  68w. 
on  the  case,  origin  of,  93. 

for  words,  gist  of,  93-107. 
not  encouraged,  179/i. 
compared  with  action  for  nuisance,  57». 
right  of  not  assignable,  498. 
when  it  survives,  498. 
among  the  most  ancient  in  the  law,  97/i. 
number  of  formerly,  96m. 
is  a  sordid  action,  ISOx. 
removal  of,  464??. 
consolidation  of,  465,  497n.,  500/;. 
no  counter-claim  allowed  in,  564. 
for  a  joint  publication,  152,  153. 
what  requisite  to  give  a  right  of,  163,  164. 
who  may  maintain,  163n.,  497. 
proceedings  in,  are  privileged,  352. 
See  Parties,  Slander. 
42 


650  INDEX. 

ACTIONABLE  LANGUAGE,  concerning  a  class  of  persons,  who  may- 
sue,  165«. 

what  is,  173rc.,  174rc.,  182,  183,  202,  204. 

Avhen  burden  on  defendant  to  show  it  is  not,  171  n. 

impossible  to  be  true,  173n.,  174n. 

concerning  a  person,  what  is,  204. 

published  orally,  is  such  as  charges  an  indictable  offense  in- 
volving moral  turpitude,  208. 

may  be  actionable  for  charging  a  statutable  offense,  although 
after  the  publication  the  statute  creating  the  offense  is  re- 
pealed, 211. 

peril  of  punishment  is  not  the  gist  of  action  for,  211. 

for  offense  in  foreign  state,  213. 

charging  offense,  afterwards  pardoned,  211. 

must  charge  an  offense,  punishable  in  a  temporal  court  of  crim 
inal  jurisdiction,  213. 

charging  a  purpose  or  intent  to  do  an  unlawful  act,  215. 

charging  a  consent  to  a  crime,  227«. 

imputing  evil  inclinations  or  principles,  216. 

denoting  opinion  or  suspicion,  217. 

by  interrogation,  219. 

by  adjectives,  220. 

apparently  innocent  words  may  be  shown  to  be,  160n.,  161n. 

per  se  and  not  per  se,  distinction  between,  203. 

statutory  provisions  as  to,  205. 

of  the  mind  and  of  the  body,  distinction  between,  243». 

in  the  past  tense,  243. 

charging  arson,  221.  See  Arson. 
forgery,  222.  See  Forgery. 
murder,  223.  See  Murder. 
being  a  thief,  224.  See  Thief. 
larceny,  225.  See  Larceny. 
perjury,  227.  See  Perjury. 
a  woman  with  want  of  chastity,  233.    See  Female. 

published  orally,  instances  of,  235,  239. 

charging  disease,  242. 

published  in  writing,  245,  246,  252. 

in  the  past  tense,  211. 

concerning  one  in  any  trade  or  office,  254,  264, 269. 

concerning  one  in  trade,  must  be  in  a  lawful  trade,  257,  259. 

concerning  partners,  261. 

charging  disinherison,  263. 

of  a  candidate  for  office,  264. 


INDEX.  651 

ACTIONABLE  LANGUAGE— continued. 
of  a  minister  of  the  Gospel,  284. 
of  one  in  office,  286. 

by  reason  of  special  damage,  291.     See  Special  Damage. 
belief  in  charge,  296,  297». 
repetition  of,  301. 

concerning  things,  305.     See  Slander  of  Title. 
See  Words. 
ACTRESS,  charge  of  intermarriage  with,  is  actionable,  249. 

language  concerning,  300. 
ACTS,  reputation  may  be  effected  by,  58?*. 
must  be  lawful  or  unlawful,  85. 
when  malicious,  117. 
must  be  voluntary  or  involuntary,  117. 
words  are,  58n. 
ADJECTIVE  WORDS,  may  confer  a  right  of  action,  220. 
ADMINISTRATOR,  words  concerning,  288. 

See  Executor. 
ADMISSION,  by  defendant,  effect  of,  592. 
ADULTERER,  charge  of  being,  not  actionable,  239,  272re. 
ADULTERY,  what  words  import,  180. 

charge  of,  actionable  in  certain  States,  205,  233n.,  238. 
charge  of,  not  actionable,  215,  234,  272. 
ADVERTISEMENT  in  newspaper,  when  privileged,  393,  417. 
ADVICE,  when  privileged,  397. 
ADVOCATE,  privilege  of,  357. 

AFFIDAVIT,  made  in  the  course  of  a  legal  proceeding,  cannot  give  a 
right  of  action  for  libel,  351n.,  352. 
See  Judicial  Proceeding. 
AGENCY,  none  in  crime,  11  In. 

See  Commercial  Agency. 
AGENT,  cannot  do  a  wrong  as  such,  11  In. 

liability  of  principal  for 'acts  of,  156. 
See  Principal  and  Agent. 

AGGRAVATING  CIRCUMSTANCE,  must  be  justified,  337. 
AGGRAVATION   OF   DAMAGES,    by   mode  of   conducting  cause, 
473,  608. 

evidence  for  the  purpose  of,  597. 

by  pleading,  608. 
ALABAMA,  to  call  a  woman  whore  is  actionable  in,  233n. 
ALDERMAN,  words  concerning,  287. 
ALIEN,  action  by,  497. 


652  index. 

ALLEGATION,  positive,  what  amounts  to,  198. 

divisible,  what  is,  199. 
ALLEGORY,  defaming  by  means  of,  168n. 
AMENDMENT,  to  retain  verdict,  490. 

of  complaint,  524«.,  490«. 
when  allowed,  579. 
AMBO  DEXTER,  meaning  of,  170ra. 
AMBIGUOUS  LANGUAGE,  how  construed,  160,  177,  179». 

innuendo  to  point  meaning  of,  534. 
ANCIENT  LAWS  against  offenses  by  language,  95. 
AND  AND  FOR,  distinction  between,  186. 
ANGLO-SAXON,  the  term  objected  to,  99/i. 
ANAGRAM,  defaming  by  means  of,  168«. 
ANSWER,  corresponds  to  plea,  546. 
effect  of  not  making,  470. 
what  amounts  to  a  general  denial,  546n. 
of  justification  must  give  color,  549. 
several  defenses  in,  549. 
of  truth,  requisite  of,  550. 
of  mitigating  circumstances,  561. 
demurrer  to,  562. 
to  inquiry,  when  privileged,  403. 

See  Plea,  Mitigating  Circumstances. 
APOLOGY,  defense  of,  435. 
plea  of,  435ra. 
withdrawal  of  plea  of,  476. 
APOTHECARY.     See  Physician. 
APPLES,  charge  of  stealing,  195. 
ARBITRATION,  in  actions  of  slander  or  libel,  472. 
ARCHBISHOP,  language  concerning,  285. 
ARKANSAS,  what  language  is  actionable  in,  205,  229w. 
ARRANT  ROGUE,  charge  of  being,  not  actionable,  239. 
ARREST  in  action  for  slander  or  libel,  464. 

of  judgment,  for  unwarranted  innuendo,  185,  536. 
where  damages  given  on  a  bad  count,  491. 
for  declaration  not  stating  a  cause  of  action,  562,  644. 
ARSON,  what  words  import,  187,  21 3n.,  222n. 

charge  of,  not  actionable,  221. 
ASSAULT,  charge  of,  not  actionable,  209ft. 

ASSESSMENT  OF  DAMAGES,  where  there  is  no  plea  or  answer,  470. 
ASTERISKS,  putting  them  for  plaintiff's  name,  169?!. 
ATTACHMENT  cannot  issue  in  actions  for  slander  or  libel,  464. 
ATTEMPT  to  commit  a  crime,  charge  of,  not  actionable,  215». 


index.  653 

ATTORNEY,  when  client  not  responsible  for  acts  of,  157n. 
words  of,  221  n  .,  254,  271,279. 
who  may  appear  by,  356». 
evidence  of  being  duly  licensed,  268«. 
not  liable  for  objecting  to  title,  31  In. 
bill  of  costs  of,  is  not  a  judicial  proceeding,  and  defama- 
tory matter  in,  is  not  privileged,  So2n. 
report  concerning  headed  "Shameful  conduct  of  an  attor- 
ney," or  "  How  lawyer  Bishop  treats  his  clients,"  held 
not  privileged,  369. 
right  of,  to  vindicate  reputation  of  his  client,  393/1. 
lien  of,  not  a  ground  for  denying  a  new  trial,  492n. 
See  Barrister,  Counsel,  Struck  off  the  Roll. 
AUCTIONEER,  words  concerning,  270/*.,  276. 
AUTHOR,  words  concerning,  28Sn. 
rights  and  duties  of,  442. 
liable  as  publisher,  148,  149. 
AVERMENT  in  pleading,  what  it  is,  lGln. 

when   necessary   to   point    the    language    to   plaint- 
iff, 163?i.,  528,  538. 

B 

BAD  REPUTE,  justifying  charge  that  plaintiff  is  in,  339,  553/i. 
BAIL.     See  Arrest. 
BAILIFF,  words  concerning,  276. 
BANK  NOTES,  charge  of  stealing,  213». 
BANKER,  action  against  for  dishonoring  a  check,  58n. 
BANKERS,  words  concerning,  275>i.,  262. 

BANKRUPT,  charge  of  being,  when  not  actionable,  239,  268,  274. 
applied  to  a  bishop,  actionable,  285n. 
commissioner,  words  concerning,  290. 
See  Insolvency. 
BANKRUPT  ROGUE,  when  actionable,  221. 
BANKRUPTCY,  report  of  proceedings  in,  are  privileged,  374. 

does  not  discharge  from  damages  in  action  for  slander 

or  libel,  465n. 
right  of  action  for  libel  does  not  pass  by,  498. 
BANKRUPTLY  KNAVE,  not  actionable,  221. 
BARN,  charge  of  burning,  213n.,  222. 
BARRATOR,  denned,  61n. 

See  Common  Barrator,  Maintainer  of  Suits. 
BARRISTER,  words  of,  281,  282,  283. 

See  Divulging  Secrets. 


654  INDEX. 

BASE,  justifying  charge  that  there  was  "nothing  too  base"  for  plaintiff 

to  be  guilty  of,  340. 
BASTARD,  charge  of  having  had,  173?*. 

charge  of  having  had,  actionable  with  special  damage,  294. 
charge  of  being,  when  actionable,  240. 
charge  of  begetting,  284. 
justifying  charge  of  begetting,  333. 
BATTERY,  charge  of,  not  actionable,  209n. 
BAWD,  charge  of  being  a,  not  actionable,  234,  239. 
BAWDY  HOUSE,  what  equivalent  to  charge  of  keeping,  188. 

charge  of  keeping,  involves  moral  turpitude,  208. 
charge  of  keeping,  is  actionable,  237. 
BEADLE.     See  Ward  Beadle. 
BEE-TREE,  charge  of  stealing,  196. 
BEGIN,  right  to,  472. 

BELIEF  in  truth  of  charge,  not  necessary,  296,  297/*.,  302. 
of  publisher,  when  material,  306. 
in  truth  of  charge,  no  defense,  342. 
in  truth,  in  mitigation,  328/i.,  342n.,  621. 
how  it  differs  from  suspicion,  217?i. 
hearsay  is  probable  ground  for,  397n. 
BELL-ROPES,  charge  of  stealing,  220. 
BELT,  charge  of  stealing,  225. 

BENIGNIOR  SENSU,  specimens  of  constructions  in,  180n. 
BERSOGLISVISUR  or  free  speaking  song,  62*. 
BIGAMY,  what  does  not  amount  to  a  charge  of,  188. 
charge  of,  is  actionable,  250n. 
charge  of,  how  justified,  614. 
BILL  of  particulars,  when  ordered,  469. 
BILLS,  file  of,  charge  of  stealing,  226n. 
BISHOP,  words  concerning,  28on. 

petition  to,  is  privileged,  385. 
BLACK-LEG,  meaning  of,  170>*.,  188,  594. 

charge  of  being,  not  actionable,  183,  238. 
BLACKMAILING,  charge  of,  369. 
BLA.CK-SHEEP,  meaning  of,  170/z. 

BLACKSMITH,  charge  against,  of  keeping  false  books,  266?*. 
BLASPHEMY,  charge  of,  is  actionable,  248. 

justifying  charge  of,  337. 
BLOODSUCKER,  charge  of  being,  241,  281,  287. 
BOARD  OF  EXCISE,  memorial  to,  is  privileged,  385. 
BOARDS,  charge  of  stealing,  196,  225. 
BOGUS  BABY,  charge  of  producing,  held  actionable,  237. 


INDEX.  655 

BOGUS  PEDLAR,  judicial  notice  of  meaning  of,  169/*. 
charge  of  being,  actionable,  235. 
See  Pedlar. 
BOLTED,  a  charge  that  plaintiff  bolted  is  not  justified  by  saying  he 

quitted,  333/?. 
BOOKS.     See  Account  Books,  New  Books,  Text  Books. 
BOOKSELLER,  liability  of,  158. 
BOTCH,  charge  of  being  is  actionable,  283. 
BOX-WOOD,  charge  of  stealing,  196. 
BRAWLING,  62w. 

BREACH  of  the  peace,  words  amounting  to,  actionable  in  Mississippi, 
Virginia,  and  Georgia,  205. 

See  Disorderly  Conduct. 
of  trust,  what  amounts  to  a  charge  of,  199. 
charge  of,  not  actionable,  215. 
BREAKING  into  a  store,  charge  of,  227. 
BREAKING  OPEN  LETTERS,  charge  of,  199,  253». 
And  see  Broken  Up,  197a, 
charge  of,  involves  moral  turpitude,  209. 

contra,  see  214/?.,  253//. 
charge  of,  is  actionable,  237. 

is  not  actionable,  214/?. 
BREWER,  words  concerning,  173/?,,  270//.,  277/?.,  332. 
BRIBERY,  charge  of,  is  actionable,  237,  247,  269/?,,  44S/?. 
BRIBING  JUSTICE,  actionable,  269. 
BRIBING  KNAVE,  actionable,  221??.,  279. 
BROKEN  UP.     See  Breaking  Open. 
BROTHEL.     See  Goose-House. 
BUGGERING  ROGUE,  actionable,  221. 
BUGGERY,  charge  of,  168/?,,  198. 

See  Unnatural  Offense. 
BUNGLER,  charge  of  being  a,  is  actionable,  283/?, 
BURNING.     See  Arson,  Barn,  Gin-House,  School-house. 
BUSINESS,  meaning  of  the  term,  257//, 

See  Trade. 
BUTCHER,  words  concerning,  276,  295//,,  387/?,,  414. 
BYSTANDER,  how  far  publisher  responsible  for   understanding  and 
hearing  of,  177/?.,  178,  592/?. 

C 

CALF-SKIN,  charge  of  stealing,  226. 
CALUMNY,  meaning  of,  347/i. 


656  lstdex. 

CANADA,  charge  of  stealing  in,  213/i. 

CANDIDATE  for  office  or  employment,  words  concerning,  264,  431. 
CAPTAIN.     See  Master  Mariner. 
CARPENTER,  words  concerning,  274/i. 

CARRYING  AWAY  CORN,  a  charge  of,  imputes  a  trespass,  192h. 
CATERPILLAR,  charging  an  inn-keeper  with  being  a,  278ra. 
CATTLE,  marks  on,  altering,  involves  moral  turpitude,  209. 
is  actionable,  236. 
charge  of  mismarking,  not  actionable,  215. 
CAUSE,  import  of  the  term,  193,  22Gn. 

charge  of  being  the  cause  of  suicide,  241. 
justifying  a  charge  of  causing  an  act  to  be  done,  332. 
CAUSES  of  action,  joinder  of,  544. 
CAUTION  not  to  trust  another,  when  privileged,  406. 
not  to  marry,  408. 
not  to  purchase  a  bond,  249,  417. 
CERTAINTY,  how  it  may  be  ensured,  76ra. 
excessive,  181. 

in  statement  of  words  published,  525. 
innuendo  to  ensure,  526. 
CHAMPERTOR,  actionable,  236. 

meaning  of  the  term,  172n. 
CHARACTER,  meaning  of  the  term,  80».,  81».,  QlQn. 
necessity  of  protecting,  98. 
to  servant,  -right  to  give,  420,  635. 
See  Master  and  Servant. 
CHASTE  CHARACTER,  meaning  of  the  term,  81». 
CHASTITY,  charge  of  want  of,  not  actionable,  233. 

actionable,  if  in  writing,  249. 
CHEAT,  charge  of  being,  not  actionable,  239. 

what  is  not  a  justification  of  a  charge  of  being,  332n. 
CHEATER,  charge  of  being,  actionable  if  applied  to  one  in  trade,  279. 

charging  an  attorney  with  being,  is  actionable,  279. 
CHEATING,  charge  of,  not  actionable,  215,  241. 
when  actionable,  289,  278. 
at  cards,  charge  of,  is  actionable,  218ft. 
CHECK,  action  for  dishonoring,  58». 
CHILD,  parent  not  answerable  for  wrongs  by,  157. 
charge  of  begetting,  238. 
charge  of  starving,  277. 
See  Infant. 
CHRISTIANITY,  introduction  of,  into  England,  99. 
part  of  the  common  law,  99. 


ITTOEX.  657 

CHURCH,  charge  of  robbing,  226n. 

discipline,  proceedings  in  course  of,  are  privileged,  376. 

privilege  of,  only  applies  where  both  parties  mem- 
bers of  the  church,  378. 
See  Desecrating  Church. 

CHURCH  MEETING,  proceeding  at,  how  far  privileged,  359. 
CHURCH- WARDEN,  language  concerning,  173«.,  289. 
CLASS  of  persons,  language  concerning,  when  actionable,  165«. 
CLERGYMAN.     See  Minister  of  the  Gospel. 
CLERK  in  a  gas  company,  words  concerning,  271. 

See  Merchant's  Clerk. 
CLIENT,  when  not  responsible  for  acts  of  attorney,  157n. 
charge  of  divulging  secrets  of,  justifying,  336. 
attorney  may  vindicate  reputation  of,  393n. 
CLIPPER  and  coiner,  meaning  of  the  terms,  188,  185/4. 
COACH  BUILDER,  words  of,  273. 
COBBLER,  charge  of  being  actionable,  283. 
COLLECTOR,  U.  S.,  language  concerning,  290. 
COLLOQUIUM,  what  it  is,  161». 

when  necessary,  181w. 

sometimes  used  as  synonymous  with  inducement,  516. 
innuendo  cannot  perform  office  of,  528. 
COMMENT,  right  of,  296».,  S74n. 

See  Criticism. 

COMMERCIAL  AGENCY,  publications  by,  how  far  privileged,  415, 

416>i. 
COMMISSION  to  examine  witnesses,  471. 
COMMISSIONER,  words  concerning,  289,  290. 

of  police,  report  of,  not  privileged,  375». 
to  inquire  into  corporations,  report  of,  not  privileged,  375/1. 
in  bankruptcy,  reports  of  proceedings  before,  privileged,  374. 
COMMON  BARRATOR,  not  actionable,  21  In. 

actionable,  236,  280. 
COMMON  FILCHER,  charge  of  being,  not  actionable,  239. 
COMMON  LAW,  ecclesiastical  law  part  of,  63/i. 

Christianity  part  of,  99. 
COMMON  SENSE  in  construing  language,  lG9n. 
COMMON  WHORE,  charge  of  being,  actionable,  233n. 
COMPANION  of  cut-throats,  not  actionable,  239. 

COMPANY,  unincorporated,  when  members  of,  cannot  maintain  action 
for  libel,  165?i. 

See  Corporation. 


658  index. 

COMPLAINT,  corresponds  to  declaration,  503. 
general  requisites  of,  501  n.,  503,  509. 
inducement,  504. 

in  England,  505. 
in  New  York,  506. 
where  there  are  several  counts,  507. 
to  be  stated  in  a  traversable  form,  507. 
may  be  put  in  issue,  508. 
superfluous,  508. 

of  plaintiff's  occupation,  511,  513. 
in  action  for  charge  of  false  swearing,  514. 
should  show  that  the  language  is  concerning  the  plaintiff,  510,  516. 
colloquium,  sometimes  used  as  synonymous  with  inducement,  516. 
must  allege  a  publication,  518. 
publication,  how  alleged,  519. 
alleging  place  of  publication,  520. 
alleging  time  of  publication,  520. 
to  allege  absence  of  legal  excuse,  521. 
to  set  out  the  language  published.  522. 
where  words  published  in  a  foreign  language,  524. 
need  not  set  out  obscene  words,  524. 
degree  of  certainty  required  in  setting  forth  the  language  published, 

525. 
need  not  set  forth  the  whole  of  the  matter  published,  525. 
allegations  of,  must  be  certain,  526. 
innuendo,  161ra.,  526. 

cannot  perform  office  of  colloquium,  528. 
cannot  introduce  new  matter  or  change  meaning,  528n. 
cannot  extend  the  meaning,  530. 
to  point  meaning  of  ambiguous  language,  534. 
rejecting,  535. 
when,  to  allege  special  damage,  541. 
what  causes  of  action  may  be  united  in,  500w.,  544. 
supplemental,  when  allowed,  54*5. 
demurrer  to,  562. 
COMPROMISE,  court  will  enforce,  435/*.,  471. 
CONCEALER  of  felony,  charge  of  being,  21  In.,  237. 
CONDITION  in  life  of  parties,  effect  of,  176,  600,  602,  625,  629. 

evidence  of,  on  face  of  libel,  596. 
CONDUCT  unfit  for  publication,  charge  of  being  guilty  of,  not  action- 
able, 21 8n, 

See  Violent  Conduct. 


INDEX.  659 

CONFIDENCE,  letters  merely  written  in,  not  privileged,  389n. 

law  respects  communications  made  in,  397».,  4Q2n.,  409». 
CONGRESS.     See  Legislative  Proceedings. 
CONJURING  KNAVE,  not  actionable,  220. 
CONNECTICUT,  false  swearing  in  ecclesiastical  court  of,  230>i. 

calling  a  woman  a  whore  is  actionable  in,  233/j. 
CONSENTING  to  a  crime,  charge  of,  not  actionable,  227n. 
CONSOLIDATING  actions  for  slander  or  libel,  465,  497/*.,  500«. 
CONSPIRACY,  what  does  not  amount  to  a  charge  of,  188. 

members  of  the  House  of  Lords,  as  such,  cannot  be 
guilty  of,  343/i. 
CONSTABLE,  words  concerning,  268,  269,  288,  379«. 

words  spoken  on  giving  in  charge  of,  are  privileged,  382rc. 
See  Police  Officer. 
CONSTRUCTION  of  language,  159. 

written  and  oral,  165. 
when  not  allowed,  161n. 
in  popular  sense,  167w. 
when  ironical,  159/i.,  1G9?i. 
how  affected  by  bad  grammar,  169ra. 
by  judicial  notice,  lQ9n. 
explanatory  circumstances,  effect  on,  I70n. 
to  be  consistent  with  the  whole  of  the  matter  pub- 
lished, 175. 
how  affected  by  the  condition  in  life  of  the  person 

spoken  of,  176,  256. 
on  demurrer,  252. 
of  plea  of  justification,  554n. 
what  to  gufde  the  jury  in,  lQ7n.,  171».,  175». 
effect  of  time,  place,  and  usage  upon,  171. 
meaning  of  the  publisher,  how  far  material  to,  176. 
when  ambiguous  and  when  unambiguous,  177. 
for  court  and  jury,  not  witnesses,  592. 
in  mitiori  sensu,  179. 
according  to  the  natural  meaning,  182. 
courts  do  not  strain  to  find  an  innocent  meaning,  182. 
after  verdict,  184. 
See  Language,  Jury,  Meaning. 
CONTAGIOUS  DISEASE,  charge  of  having,  242. 
CONTEMPT  in  publishing  reports  of  proceedings  of  a  court  of  justice, 
370. 
in  writing  private  letter  to  a  judge  respecting  a  cause  pend- 
ing before  him,  350n. 


660  INDEX. 

CONTEMPT  in  publishing  disparaging  comments  on  courts  or  judges, 

371/z. 
CONTRIBUTION,  none  between  wrong-doers,  502. 
CONVICT,  actionable,  212. 

See  Returned  Convict. 
CONVICTED  FELON,  meaning  of  the  term,  189. 

report  of  speech  of,  not  privileged,  375n. 
COOPER,  words  concerning,  270». 
CORN,  charge  of  carrying  away,  192n.,  \97ti. 

charge  of  stealing,  225ra.,  227. 
CORN-FACTOR,  words  concerning,  276,  414. 
CORN-STEALER,  charge  of  being,  is  actionable,  237. 
CORONER,  not  liable  for  slander  or  libel,  361. 

criminal  information  granted  for  publishing  minutes  of  in 
quest  before,  370».,  375«.. 
CORPORATIONS  are  legal  persons,  455. 

their  rights  and  duties  assimilated  to  natural  persons,  455. 

can  act  only  through  agents,  455. 

may  be  sued  for  acts  of  agents,  456. 

may  have  a  reputation,  456. 

language  concerning,  457. 

action  by,  for  libel,  457. 

cannot  be  guilty  of  slander,  459. 

may  be  guilty  of  libel,  460. 

See  Fire   Company. 
CORRUPT,  charging  a  judge  with  being,  is  actionable,  287. 
CORRUPTION  in  office,  charge  of,  2&7n.,  287 n. 
COSTS,  plaintiff  may  be  taken  in  execution  for,  465. 
security  for,  465. 
what  to  be  recovered,  464. 
when  action  referred,  472n. 
not  allowed  as  damages,  487ra. 
effect  of  amount  of  verdict  upon,  486,  495. 
staying  proceedings  until  paid,  496. 
COUNCIL  of  appointment,  petition  to,  is  privileged,  385. 
COUNSEL,  privilege  of,  357. 

attorney  acting  as,  his  privilege,  357«. 
opening  and  summing  up  of,  on  trial,  473. 
when  he  may  refuse  to  testify,  587«. 
See  Attorney. 
COUNSELLOR,  language  concerning,  281,282,  283. 

See  Divulging  Secrets. 
COUNTERCLAIM,  none  allowed  in  action  for  slander  or  libel,  564. 


INDEX.  661 

COUNTERFEIT  imports  felony,  236n. 

COUNTERFEITER,  what  amounts  to  a  charge  of  being  a,  199. 
charge  of  being  is  actionable,  235,  236. 
thought  no  more  of  than  a  counterfeiter,  is  actionable,  248. 
COUNTERFEITING,  charge  of,  involves  moral  turpitude,  209. 
COUNTERFEIT  MONEY,  charge  of  being  a  dealer  in,  is  actionable, 

235. 
COUNTY  COURTS  of  England,  no  jurisdiction  of  actions  for  slander 

or  libel,  464n. 
COURT  and  jury,  province  of,  476,  592. 

COURT  OF  JUSTICE,  to  be  held  with  open  doors,  364.  # 

every  one  presumed  to  know  proceedings  of,  364. 
publication  of  proceedings  of,  364. 
See  Judicial  Proceedings. 
COURT   MARTIAL,  report  of  decision  of,  is  privileged,  362. 
COURTS.     See  Ecclesiastical  Courts,  Piepowder. 
COWARD,  charge  of  being,  when  actionable  in  Tennessee,  205. 
COZENER,  judicial  notice  of  meaning  of,  170m. 

charge  of  being,  not  actionable,  240,  277,  278. 
CREDIT,  imputing  want  of,  when  actionable,  273. 
CRIME,  words  imputing,  must  be  precise,  168«. 
CRIME  against  nature.     See  Unnatural  Offense. 
and  tort,  difference  between,  86,  145?i. 
no  agency  in,  1 1  In.. 
intent  the  essense  of,  127«. 
malice  an  ingredient  of,  130/i. 
CRIMINAL  OFFENSE,  charge  of  committing,  when  actionable,  209, 

210. 
CRIMINAL  PROSECUTION,  for  speech,  59». 
CRITICISM,  right  of,  296n.,  S74n.,  439/*.,  440. 
of  persons  and  things,  441. 
of  public  men,  441,  432/i. 
is  founded  on  the  assumption  that  what  is  criticised  exists, 

450. 
is  opinion,  451. 
test  of  its  fairness,  451. 
of  matters  of  public  interest,  453. 
CRUELTY,  language  may  amount  to,  58n. 
CUCKOLD,  charge  of  being,  is  actionable,  247. 
CUCKOLDY  ROGUE,  actionable,  221. 

CUNNINGHAM  AFFAIR,  not  proper  to  admit  evidence  of  meaning 

of,  592n. 


662  index. 

CUSTOMERS,  loss  of,  is  special  damage,  293. 

how  to  be  alleged  in  complaint,  542. 

evidence  of,  295n.,  543,  641. 

right  of,  to  complain  of  tradesman  with  whom  he  deals, 
414. 
CUT  HIM  OUT  OF  DOORS,  meaning  of  the  phrase,  172n. 


D 

DAiajA-DOWN-DILLY,  meaning  of,  170w. 
DAMAGES,  power  of  court  over,  98. 

correspond  to  Anglo-Saxon  were,  98?i. 

what  are,  109,  202. 

effect  of  intent  upon,  131n.,  133. 

circumstances  to  mitigate,  561. 

when  plaintiff  to  elect  de  melioribus,  153,  502. 

particular  and  general,  distinction  between,  295w. 

after  recovery  of  judgment,  436». 

how  assessed  on  judgment  for  want  of  plea,  470. 

aggravation  of,  597. 

aggravation  of,  by  conduct  of  cause,  473. 

mitigation  of,  616. 

jury  to  fix  amount  of,  486. 

cost  not  to  be  allowed  as,  487w. 

cannot  exceed  the  amount  claimed,  490. 

nominal,  when  proper,  486,  617». 

vindictive,  when  allowed,  489,  490?*.. 

prospective,  not  allowed,  488. 

effect  of  costs  upon,  487. 

on  several  counts  and  one  count  bad,  490. 

general  damages,  where  there  is  a  misjoinder  of  counts, 
491. 

reducing  amount  of  on  appeal,  494«. 
See  Special  Damage,  Nominal  Damages,  New  Trial. 
DAMNED  ROGUE,  charge  of  being,  not  actionable,  239. 
DANGER  of  punishment,  not  the  gist  of  an  action  for  slander  or  libel, 

211. 
DEAD  BODY,  charge  of  stealing  from,  225rc. 

DEALER  in  counterfeit  money,  charge  of  being  a,  is  actionable,  235. 
DEATH,  charge  of  being  the  cause  of,  does  not  amount  fo  murder,  192, 
charge  of  being  guilty  of  the  death  of  D.  is  actionable,  237. 
of  party  to  action,  effect  of,  498. 


INDEX.  6G3 

• 

DEBATE,  freedom  of.     See  Legislative  Proceedings. 

DEBAUCHEE,  charge  of  being,  is  actionable,  247n. 

DECLARATION.     See  Complaint. 

DEER  STEALING,  charge  of,  not  actionable,  211. 

DEFAMED,  meaning  of,  61w. 

DEFAMER,  who  is,  61. 

DEFAMATION,  what  it  is,  63. 

jurisdiction  of  ecclesiastical  courts  in  matter  of,  63. 
jurisdiction  of  ecclesiastical  courts  in  matter  of,  abol- 
ished, 63?i. 
evidence,  596. 
DEFAMATORY,  language  must  be,  to  constitute  slander  or  libel,  115. 
DEFAULT  of  plea  or  answer,  effect  of,  470. 
DEFENSE,  distinction  between  legal  excuse  and,  110. 
of  privileged  communication,  319. 
of  repetition,  322. 
of  truth,  327,  621. 

of  legislative  proceedings  and  report  thereof,  342. 
judicial  proceedings,  347,  352. 
parties  to  proceedings,  348,  354. 
that  language  published  by  one  as  counsel,  356,  357. 

as  witness,  353. 
as  a  judge,  360. 
report  of  judicial  proceedings,  364. 
of  quasi  judicial  proceedings,  370. 
that  publication  made  in  the  course  of  church  discipline, 

376. 
that  publication  made  at  a  public  meeting,  378. 
that  publication  made  in  seeking  redress  other  than  judi- 
cially, 382. 
that  publication  made    in    giving  advice  or  information 

generally,  387. 
giving  a  character  to  a  servant,  420. 

that  publication  concerning  a  candidate  for  office  or  em- 
ployment, 431. 
insanity,  434. 
drunkenness,  435. 

infancy,  435.  . 

accord  and  satisfaction,  435. 
previous  recovery,  436. 
apology,  435. 

publication  in  newspaper,  437. 
criticism,  443. 


664  INDEX 

DEFENSE— continued. 

what  must  be  specially  pleaded,  547. 
wliat  may  be  pleaded  together,  544. 
in  mitigation,  616.     See  Mitigation. 
copied  from  another  paper,  322«. 
communication  by  third  person,  323,  325». 
of  previous  rumors,  323». 
notice  or  specification  of,  560. 
evidence  for,  611. 

See  Answer,  Plea. 
DEFENDANT,  examination  of,  to  prepare  complaint,  467. 
may  be  arrested,  464. 
examination  of,  467,  588«. 
no  contribution  between  or  indemnity  to,  502. 
interrogatories  to,  468. 
inspection  by,  468. 
effect  of  death  of,  498. 
evidence  of  liability  of,  592. 
evidence  for,  610. 

wealth  of,  cannot  be  shown  to  aggravate  damages,  602. 
poverty  of,  cannot  be  shown  in  mitigation,  629. 
cannot  set  up  his  own  iniquity  in  mitigation,  630w. 
execution  against  his  person,  465. 
not  obliged  to  declare  to  whom  defamatory  matter  ap- 
plied, 468.  , 
may  offer  to  allow  judgment,  495. 
DEFINITION  of  writing,  59. 
of  effigy,  59. 
of  slander,  50,  59. 
of  defamed  and  defamer,  61. 
of  blackleg,  594». 
of  libeller,  60. 
of  satirist,  61n. 
of  barrator,  61w. 
of  scandal,  58m. 
of  lampooner,  6 In. 
of  libellus,  G9n. 
of  reputation,  80m.,  81m.,  61 6n. 
of  character,  80«.,  81n.,  616n. 
of  honor,  82-n. 
of  rights,  83. 
of  duties,  83. 
of  malice,  122n.,  123». 


index.  665 

DEFINITION— continued. 

of  publish  and  published,  136». 

of  meaning,  177n. 

of  business  and  trade,  257rc. 

of  runagate,  258?i. 

of  lawsuit,  230w. 

of  judicial  proceeding,  355/i. 

of  statutory,  7on. 

of  law  of  libel,  64. 

none  of  libel,  71». 

attempted,  of  libel,  71,  72. 

of  action  for  words,  Hhi. 

difficulty  of,  72,  76».,  S9n. 
DEFRAUDED,  not  actionable,  240,  271. 
DELIRIUM  TREMENS,  perhaps  a  defense  to  an  action  of  slander  or 

libel,  432>i. 
DEMURRER,  for  improper  joinder  of  parties,  501. 

to  complaint,  562. 

to  complaint,  does  not  admit  the  innuendo,  564. 

language  how  construed  on,  252. 

to  answer,  562. 

not  allowed  to  mitigating  circumstances,  set  up  in  the 
answer,  562. 

Lord  Coke's  advice  in  relation  to,  562. 
DESECRATING  CHURCH,  charging  a  minister  with,  is  actionable, 

286. 
DESERTER,  charge  of  being,  not  actionable,  239. 
DETECTED,  meaning  of  the  term,  193,248». 
DIRECTOR  of  public  company,  words  concerning,  288. 
DISCOVERY,  in  aid  of  action  for  slander  or  libel,  467. 
DISHONESTY,  charge  of,  is  actionable,  248. 
DISORDERLY  CONDUCT,  when  words  amount  to,  92n. 
DISTILLER,  words  concerning,  274». 
DIVISIBLE  ALLEGATIONS,  what  are,  199. 

justification  of,  331. 
DIVISIBLE  INNUENDO,  part  of  may  be  rejected,  535. 
DIVULGING  secrets  of  clients,  charge  of,  against  a  counsellor,  justify- 
ing, 334. 
DOCUMENTS,  inspection  and  production  of,  when  ordered,  466. 
DOG,  charge  of  stealing,  196. 

charge  of  having  intercourse  with  a,  235. 
DOME  BOOK  of  King  Alfred,  100«. 

43 


666  INDEX. 

DOMESTIC  SERVANT,  words  concerning,  281. 

See  Servant. 
DROVER,  words  concerning,  274rc. 
DRUGGIST,  words  of,  253. 

DRUNKARD,  charge  of  being,  is  actionable,  247. 
DRUNKENNESS,  charge  of,  not  actionable,  242. 

not  a  defense  to  an  action  for  slander  or  libel,  435. 
is  mitigation,  435,  629n. 
See  Master  Mariner. 
DRUNKEN  WHORE,  held  actionable,  233. 

DUEL,  calling  one  coward  for  refusing  to  fight,  is  actionable  in  Ten- 
nessee, 205. 
DUNCE  actionable,  spoken  of  a  lawyer,  283. 
DUTY,  the  opposite  of  a  right,  83. 

not  a  person  or  a  thing,  83. 

object  of,  84. 

and  right  reciprocal,  84. 

pertains  solely  to  persons,  84. 

performance  of,  compulsory,  84. 

how  to  be  performed,  84. 

in  some  sense  the  result  of  law,  85. 

every  act  in  performance  of,  &c,  85. 

different  under  different  laws,  86. 

law  prescribes,  89. 

impossibility  of  defining,  90. 
DYER,  words  concerning,  274. 


E 

EARTH,  charge  of  stealing,  196. 
ECCLESIASTICAL,  courts,  powers  of,  63n.,  101  n, 

law,  part  of  English  common  law,  63». 

no  status  in  New  York,  Q3n. 
courts,  establishment  of,  97. 

jurisdiction  of,  in  cases  of  defamation,  abol- 
ished, 63». 
EDITOR  of  newspaper,  liability  of,  157rc. 

See  Newspaper. 
EFFIGY,  is  language  expressed  in  signs,  58. 
meaning  of,  59. 
publication  of,  143.    . 
EMBEZZLEMENT,  what  amounts  to  a  charge  of,  195. 


index.  667 

EMBRACERY,  what  amounts  to  a  charge  of,  189. 

charge  of,  involves  moral  turpitude,  209. 
EMPIRIC,  judicial  notice  of  meaning  of,  169«. 
charge  of  being,  is  actionable,  282. 
EMPLOYER  and  employee.     See  Master  and  Servant. 
EMPLOYMENT,  loss  of,  is  special  damage,  293. 

See  Condition. 
ENCHANTER,  charge  of  being,  not  actionable,  239. 
ETIQUETTE,  charge  of  a  breach  of,  not  actionable,  252. 
EVIDENCE  of  intention,  120».,  12ln.?610. 

and  pleading  should  correspond,  565. 

of  the  language  published,  565. 

for  plaintiff,  582. 

of  appointment  to  office,  268n. 

of  being  duly  licensed,  268w. 

of  publication  of  defamatory  matter,  582. 

as  to  innuendo,  537. 

of  witnesses  as  to  meaning,  592. 

of  handwriting,  590. 

of  defendant's  liability,  592. 

of  inducement,  594. 

of  inducement  on  the  face  of  the  libel,  596. 

in  aggravation  of  damages,  597. 

of  plaintiff's  good  reputation,  597. 

of  malice,  598,  600,  602. 

falsehood  may  be,  599. 

of  plaintiff's  rank  and  condition  in  society  to  aggravate 
damages,  600. 

of  defendant's  wealth,  602. 

of  current  report  that  defendant  had  made  charge  against 
plaintiff,  602. 

of  plaintiff's  distress  of  mind,  602. 

of  malice  to  aggravate  damages  or  to  defeat  defense  of 
privilege,  602. 

of  other  publications  by  defendant  to  prove  malice,  604. 

of  admissions  by  defendant,  606. 

of  personal  ill-will,  607. 

of  malice  on  the  face  of  the  libel,  607. 

of  malice,  from  interposing  a  justification  which  is   not 
proved,  608. 

by  plaintiff  to  rebut  defendant's  evidence,  609. 

for  defendant,  610. 

under  general  issue,  611. 


668  INDEX. 

EVIDENCE— continued. 

to  sustain  a  plea  of  justification,  613,  615. 

of  plaintiff's  reputation  in  mitigation,  616. 

of  plaintiff 's  general  reputation,  618,  620. 

of  truth  under  general  issue,  621. 

of  truth,  or  tending  to  prove  the  truth  of  the  matter  pub- 
lished, in  mitigation,  622. 

of  acts  of  plaintiff,  inducing  a  belief  of  the  truth  of  the 
charge  complained  of,  623. 

of  general  reports  or  suspicion  of  plaintiff 's  guilt,  623. 

of  plaintiff's  standing  and  condition  in  society  in  mitiga- 
tion, 625. 

of  defendant's  declaration  in  mitigation,  625. 

of  heat  and  passion  in  mitigation,  626. 

of  prior  publications  of  plaintiff  in  mitigation,  627. 

of  controversies  between  plaintiff  and  defendant  in  miti- 
gation, 628. 

of  defendant's  poverty  not  admissible  in  mitigation,  629. 

what  not  receivable  in  mitigation,  629. 

of  loss  of  customers,  543. . 
See  Variance. 
EXCISE.     See  Board  of  Excise. 

EXCOMMUNICATED,  charge  of  having  been,  is  actionable,  238,  247. 
EXCUSE.     See  Legal  Excuse. 
EXECUTOR,  actions  of  slander  or  libel  by,  498. 
EXEMPLARY  DAMAGES,  when  allowed,  489. 
EX-PARTE  AFFIDAVITS,  publication  of,  not  privileged,  373«.,  641. 
EX-PARTE  PROCEEDINGS,  report  of,  how  far  privileged,  370,  374w. 
EXPOSURE  of  the  person,  charge  of,  183. 

See  Indecent  Exposure. 


FACT  and  opinion,  supposed  distinction  between,  219».,  453. 
FAIR  REPORT,  what  is  meant  by,  367. 

question  for  jury,  368. 
FALLING  SICKNESS,  charge  of  having,  doubtful,  if  actionable,  242. 
FALSE,  charging  a  judge  with  being,  is  actionable,  287. 
FALSE  BOOKS,  charge  of  keeping,  266. 

mean  false  debt  books,  267w. 

charge  of  keeping,  implies  they  were  knowingly  so 
kept,  267?i. 


INDEX.  669 

FALSE  HEIR,  charge  of  producing,  held  actionable,  237. 
FALSEHOOD,  charge  of,  is  actionable,  248,  272. 

justifying  charge  of,  337. 
FALSE  SWEARING,  charge  of,  actionable  in  Arkansas  and  Illinois, 

205,  229n. 
charge  of,  not  actionable,  193. 
charge  of,  actionable,  228. 
charge  of,  is  actionable  if  in  writing,  248. 
justifying  charge  of,  341  n.,  557. 
See  Forsworn,  Perjury. 

FALSE  WEIGHT,  charge  of  making,  277n. 

FALSITY,  how  far  necessary  to  constitute  libel  or  slander,  115,  ll&n. 

must  it  be  alleged,  116. 

if  alleged  cannot  be  traversed,  116». 

evidence  of  malice,  599,  433,  400n. 
FARMER,  charge  of  keeping  false  books,  when  actionable,  266. 

words  concerning,  214n.,  267. 
FEELINGS,  law  gives  no  remedy  for  outrage  of,  97,  298. 
FELON,  charge  of  being,  is  actionable,  247n. 
See  Convicted  Felon. 

FELONY,  what  does  not  amount  to  a  charge  of,  217n. 

charge  of  being  guilty  of,  actionable,  236. 

the  word  counterfeit  imports,  236ra. 

charge  of  concealing,  actionable,  237. 
FEMALE,  charge  against,  of  incontinency,  when  actionable,  206, 233, 294. 

charge  of  drunkenness,  actionable,  242n. 

charging  with  having  had  a  child,  and  made  away  with  it, 
234n. 

with  being  a  bad  character,  actionable,  2S4n. 

charging  with  fornication,  when  actionable,  205,  233n.,  234n. 

charging  with  taking  medicines  to  produce  abortion,  is  ac- 
tionable, 235. 

charging  sexual  intercourse  with  a  dog,  235. 

charging  with  going  to  goose  house,  235. 

charging  with  drunkenness,  actionable,  242». 

may  be  arrested  in  action  for  slander  or  libel,  464. 
See  Hermaphrodite,  Married  Woman,  Woman. 
FEME  SOLE,  charge  against  chastity  of,  when  actionable,  206, 233, 294. 

See  Special  Damage. 
FICTITIOUS  NAMES,  use  of,  to  conceal  defamation,  165?*.,  168». 
FIGURING  in  squatter  riots,  charge  of,  183. 
FILE  OF  BILLS,  charge  of  stealing,  226n. 


670  INDEX. 

FIRE  COMPANY,  unincorporated,  cannot  maintain  an  action  for  libel, 

165». 

See  Corporation. 

FLORIDA,  what  language  is  actionable  in,  206. 

FOOLS,  tacitly  exempted  out  of  all  law,  434. 

FOR  and  AND,  distinction  between,  186. 

FOREIGN  STATE,  charge  of  committing  crime  in,  is  actionable,  213. 

action  for  publication  in,  145. 
FORFEITURE  of  recognizance,  cannot  be  affected  by  words,  58». 
FORGERY,  meaning  of  the  term,  189. 

charge  of,  actionable,  183,  222. 
justifying  charge  of,  559». 
FORMER  RECOVERY,  defense  of,  436. 

defense  of,  must  be  specially  pleaded,  437. 
in  mitigation,  631. 
See  Second  Action. 
FORNICATION,  what  amounts  to  a  charge  of,  189. 

charge  of,  actionable  in  certain  States,  206,  238,  234n. 
charge  of,  not  actionable,  234. 
justifying  charge  of,  334,  339. 
FORSWORN,  charge  of  being,  not  actionable,  193,  214».,  229. 

actionable  in  Arkansas  and  Illinois,  229ra. 
FREEDOM  of  speech,  in  legislative  bodies,  437^.,  342. 

of  the  press,  437. 
FROZEN  SNAKE,  judicial  notice  of  meaning  of,  169rc.,  185». 
FUCK,  an  English  word,  and  meaning  known  without  an  innuendo,  169n. 
FUDGE,  prefixed  to  a  newspaper  article,  effect  of,  369. 
FUGITIVE  from  justice,  requisition  for  arrest  of,  is  privileged,  351w. 
FURZE,  charge  of  stealing,  196. 

G 

GAMBLING  FRACAS,  judicial  noticexof  meaning  of,  169rc. 

charge  of  being  engaged  in,  not  actionable,  253. 
GOAL,  charge  of  being  in,  actionable,  212. 
GALLOWS,  speech  from  the,  not  privileged,  375«.. 
GENERAL  DENIAL,  effect  of,  547. 

and  justification  may  be  pleaded  together,  549. 
cannot  justify  on  the  ground  of  truth,  under  de- 
fense of,  621. 
GENERAL  ISSUE,  puts  in  issue,  the  correctness  of  a  translation  of 
foreign  words,  524. 
evidence  under,  611,  616. 


INDEX. 


671 


GEORGIA,  what  language  is  actionable  in,  205. 

GESTURES,  included  in  effigy,  59. 

GIN  HOUSE,  charge  of  burning,  222n. 

GIST  OF  ACTION  for  slander  and  libel,  93,  107,  246m.,  293m. 

GOLDSMITH,  words  concerning,  277. 

GONORRHOEA,  charge  of  having,  is  actionable,  242. 

GOOD  BEHAVIOUR,  binding  to,  92m. 

GOOD  FAITH,  meaning  of  the  term,  306. 

right  to  publish  in,  397. 
GOODS,  reflections  on,  307m. 

See  Things. 
GOOSE  HOUSE,  no  judicial  knowledge  that  it  means  brothel,  170m. 

charging  female  with  visiting,  not  actionable,  235. 
GOVERNOR,  report  by,  is  privileged,  362. 

communication  to,  is  privileged,  363m.,  384. 
GRAMMATICAL  CONSTRUCTION  not  always  followed,  169m. 
GRAND  JURY,  report  of,  is  privileged,  361m. 

presentment  to,  is  privileged,  362. 

report  of  proceedings  before,  not  privileged,  375. 
GRAZIER,  words  concerning,  274m. 
GUILTY,  import  of  the  term,  192. 


H 

HANDWRITING,  evidence  of,  591  n. 
HEALER  of  felons,  meaning  of,  170m.,  172m. 
HEARSAY  is  probable  ground  for  belief,  397m. 
HEAT  and  passion,  in  mitigation,  626. 
HEIR,  presumptive  words  concerning,  263. 

See  False  Heir. 
HERETIC,  not  actionable,  240m. 

HERMAPHRODITE,  charge  of  being,  not  actionable,  241,  272. 
HIEROGLYPHICS,  defamation  by  means  of,  168m. 
HIGHWAYMAN,  charge  of  being,  not  actionable  by  reason  of  context, 
223m. 
report  of  speech  of,  not  privileged,  375m. 
HOG  STEALING,  charge  of,  196m. 

justifying  charge  of,  337m. 
HOG  THIEF,  charge  of  being,  is  actionable,  236. 
HONEST  LAWYER,  actionable,  168m. 
HONOR,  injury  to,  82m. 

means  reputation,  82n. 


672  INDEX. 

HONORARY  OFFICE,  words  of  one  in,  261. 

HOOKED,  court  cannot  take  judicial  notice  of  its  meaning,  170/i- 

HOPPOLES,  charge  of  stealing,  195,  196. 

HORSE,  charge  of  killing,  236. 

charge  of  cutting  tail  off,  240. 
HORSE-STEALER,  charge  of  being  a,  331rc. 

justification  of  charge  of  being,  331n.,  332».,  334». 
HORSE-THIEF,  what  amounts  to  a  charge  of  being,  199. 

charge  of  being  thought  no  more  of  than  a  horse  thief, 
is  actionable,  248. 
HOTEL  KEEPER.     See  Inn-Keeper. 
HOUSE  of  ill-fame,  meaning  of  the  term,  188. 
HOUSE  of  Lords.     See  Lords. 
HUSBAND,  loss  of,  is  special  damage,  293. 
and  wife,  publication  by,  152. 

may  sue,  after  recovery  by  husband,  436. 
as  parties,  499. 
defense  to  action  by,  500. 

joinder  of  causes  of  action,  in  action  by,  500n- 
See  Married  Woman. 
HYPOCRITE,  charge  of  being,  is  actionable,  247. 


ICELAND,  actionable  language  in,  204rc. 
ICELANDERS,  their  horror  of  libel,  68». 
IDENTITY  of  plaintiff,  how  proved,  163w. 
IGNORANCE,  charge  of,  when  actionable,  281,  283. 

what  amounts  to  a  charge  of,  199. 
ILLEGALITY  of  occupation,  when  a  defense,  259,  501  n. 
ILL-FAME.     See  House  of  Ill-Fame. 
ILLINOIS,  what  language  is  actionable  in,  205. 

child  under  ten  years  of  age  cannot  be  punished  for  larceny 

in,  214«. 
calling  a  woman  whore  is  actionable  in,  233». 
statutory  definition  of  libel  in,  76n. 
IMPOSTOR,  charge  of  being,  is  actionable,  282n. 
IMPOSTURE,  charge  of  living  by,  not  actionable,  215. 
IMPRISONMENT,  language  cannot  amount  to,  58». 
INCEST,  imputation  of,  when  actionable,  206,  215,  284. 
charge  of,  not  actionable,  215. 
what  is  not  a  justification  of  a  charge  of,  333re. 


INDEX. 


673 


INCLINATION,  charge  of,  not  actionable,  217. 
INCONTINENCE,  charge  of,  when  actionable,  205,  238,  261. 

seldom  made  in  coarse  language,  191. 
INDECENT  exposure  of  person,   charge  of,  involves  moral  turpitude, 
209. 
charge  of,  is  actionable,  237. 
INDEMNITY  against,  consequence  of  publishing   a  libel,  not  lawful, 
502». 
if  an  aggravating  circumstance,  602». 
INDIANA,  what  language  is  actionable  in,  206,  233rc.,  238w. 
INDICTABLE  OFFENSES,  charge  of  committing,  when  actionable, 

209. 
INDICTMENT,  for  libel,  63. 

does  not  lie  for  slander,  63. 
INDUCEMENT,  office  of,  and  when  necessary,  504. 
of  ironical  language,  504«. 

to  show  meaning,  not  necessary  in  England,  505. 
to  show  application  to  plaintiff  not  necessary  in  New  York, 

506. 
in  what  part  of  complaint  to  be  inserted,  506. 
where  there  are  several  counts,  507. 
to  be  stated  in  a  traversable  form,  507. 
matter  of,  may  be  put  in  issue,  508. 
when  superfluous,  508,  509. 
of  showing  application  to  plaintiff,  510. 

plaintiff's  occupation,  511,  512. 
too  great  minuteness  in,  to  be  avoided,  513. 
of  plaintiff  being  duly  qualified,  513. 
where  the  charge  is  of  false  swearing,  514,  515. 
must  be  proved,  594. 
how  proved,  594,  596. 
INFAMOUS  PUNISHMENT,  what  is,  210. 
INFANCY,  not  a  defense  to  an  action  for  slander  or  libel,  435. 
INFANT,  liable  to  arrest  on  execution  in  an  action  for  slander  or  libel, 
465ra. 
not  liable  for  nuisance,  435». 
See  Child. 
INFORMATION,  when  privileged,  393. 
INFORMER,  charge  of  being,  is  actionable,  247,  641. 
INGRATITUDE,  charge  of,  actionable,  185».,  246. 
INJUNCTION  to  restrain  publication  of  libel  not  ordinarily  allowed, 
91». 


674  INDEX. 

INJUNCTION— continued. 

against  rendition  of  jugdment  in  an  action  of  slander,  on 

account  of  insanity  of  defendant,  434. 
to  secrecy,  592. 
INITIALS  of  name,  description  of  party  by,  lC5n.,  169n. 
INNKEEPER,  words  concerning,  273,  274n. 

is  a  trader,  274ra. 
INNUENDO,  what  it  is,  161n.,  526. 

when  it  cannot  apply  language  to  the  plaintiff,  164n.,  528,  538. 
when  not  necessary,  169n. 
admitted,  by  not  pleading,  470. 
to  point  meaning,  526,  534,  643,  I81n.,  182n. 
must  be  justified,  556«.,  341. 
unwarranted  arrest  of,  judgment  for,  530,  185. 
new  trial  for,  495. 
when  it  may  be  rejected,  535,  540. 
effect  of,  after  verdict,  186». 
justifying,  341,  556w. 
not  admitted  by  demurrer,  564. 
evidence  to  support,  537. 
cannot  extend  meaning  of  words,  530,  244. 
instance  of  use  of,  277n. 
plaintiff  bound  by,  534. 
held  proper,  536. 
held  unwarranted,  536. 
INQUIRY,  answer  to,  when  privileged,  403. 
writ  of,  to  assess  damages,  470. 
INSANITY,  charge  of,  is  actionable,  248,  272. 

is  a  defense  to  an  action  for  slander  or  libel,  170?i.,  434. 
complaint  for   charge  of,  need  not  allege  special  damage, 
541. 
INSOLVENCY,  charge  of,  when  actionable,  273. 
INSPECTION  of  documents,  when  ordered,  466,  468. 
INSPECTOR  OF  CHARITIES,  report  of,  not  privileged,  375n. 
INSULT,  words  amounting  to,  actionable  in  Mississippi,  Virginia  and 

Georgia,  205. 
INSULTING  FEMALES,  charge  of,  is  actionable,  249. 
INTENTION,  presumption  of,  111,  U'2n. 
how  judged  of,  121n. 
what  is,  118,  119,  120. 
kinds  of,  120. 

is  a  mental  conception,  120. 
is  a  fact,  120 


675 


INDEX. 

INTENTION— continued. 

bad,  is  malice,  121. 
meaning  of,  122. 
evidence  of,  120n.,  121n.,  610. 
how  far  necessary  to  constitute  a  wrong,  110,  132. 
justifying,  341  n. 

charge  of,  when  not  actionable,  215. 
question  for  jury,  599. 
INTERPRETATION,  when  not  allowed,  161n. 

See  Construction. 
INTERROGATION,  charge  of  offense  by  means  of,  219. 
INTERROGATORIES,  to  defendant  when  allowed,  467, 468. 
INVOLUNTARY  ACT,  what  is,  118. 

no  responsibility  for,  110. 
IOWA,  calling  a  woman  whore  is  actionable  in,  233/1.,  234n. 
IRELAND,  charge  of  murder  in,  214rc. 
IRONICAL  WORDS,  159».,  168». 

to  be  explained  by  inducement,  504/i. 
ITCH,  charge  of  having,  not  actionable,  242. 

charge  of  having,  is  actionable,  if  in  writing,  248. 


JACOBITE,  charge  of  being  a,  when  actionable,  216. 
JAIL,  held  to  be  a  public  court,  374. 

charge  of  being  in,  212. 
JEOPARDY.     See  Danger  of  Punishment. 
JEST,  not  a  defense  to  an  action  of  slander  or  libel,  434n.,  476>i. 
JESUITS,  sanctioning  killing,  for  slander,  98». 
JEWELLER,  words  concerning,  277. 
JEZEBEL,  judical  notice  of  meaning  of,  169n. 
JOINDER  of  causes  of  action,  544. 

of  parties.     See  Parties. 
JOINT  ACTION,  when  maintainable,  501,  262. 
JOINT  PUBLICATION  of  oral  language,  cannot  be,  152. 
of  written  language,  152. 
action  for,  153. 
JOINT  STOCK  COMPANY,  action  by,  in  name  of  chairman,  458. 
JUDGE,  words  concerning,  286. 

not  liable  in  slander  or  libel,  360. 

private  letter  to,  not  privileged,  350n. 

may  refuse  to  try  a  cause,  472. 

new  trial  before  the  judge  who  presided  at  the  first  trial,  472. 


676  ESTDEX. 

J  U  D  G  E — co  n  tinned. 

to  say  of  unambiguous   language  if  it   is   actionable,  per  se, 

481,.  592. 
charge  to  jury,  482. 

on  uncontroverted  facts  to  decide  if  publication  is  privileged, 
484. 
JUDGMENT,  arrest  of,  563,  644. 

JUDICIAL  NOTICE  of  meanings  of  words,  &c.,  I69n.,  236n. 
JUDICIAL  PROCEEDING,  privilege  of,  348. 

reports  of,  are  privileged,  364. 

to  be  conducted  openly,  364. 

law  suit  implies  a,  230ra. 

attorney's  bill  of  costs  is  not,  352n. 

include   every    proceeding  before  a    competent 

court  or  magistrate,  355w. 
voluntary  affidavit  is  not,  641. 
JURY  to  decide  questions  of  fact,  113. 
power  of  court  over,  H3n. 
to  judge  of  meaning,  165. 
province  of,  478. 
what  to  guide  them  in   deciding   on   meaning  of  words,    167n., 

171n.,  175«. 
charge  of  packing,  193,  241. 
instructions  to,  as  to  damages,  486. 

See  Questions  for  Jury. 
to  determine  the  meaning  of  words,  476,  592. 
to  determine  the  meaning  ascribed  by  the  innuendo  is  the  true 

meaning,  479. 
to  determine  truth  of  the  facts  charged,  480. 
what  the  judge  may  charge,  482. 
JURYMAN  words  concerning,  288. 

not  liable  for  words  spoken  in  the  jury  room,  361  n. 
JURY,  trial  by,  origin  of,  98?i.     See  Trial. 
JUSTICE,  meaning  of,  193. 

words  concerning,  269,  286. 
certificate  by,  is  privileged,  361  n. 
courts  of,  to  be  held  with  open  doors,  364. 
administration  of  a  subject  of  criticism,  449. 
JUSTICE.  OF  THE  PEACE,  no  jurisdiction  of  action  for   slander  or 

libel,  464. 
paying   money  to  secure  election  of,  involves   moral   tur- 
pitude, 209. 
words  concerning,  270,  269,  286. 


index.  677 

JUSTICE  OF  THE  PEACE— continued. 

not  liable  for  defamatory  matter  in  his  official  certificate, 

SQln. 
liable  for  defamation,  362n.,  363. 
JUSTIFICATION,  must  be  as  broad  as  the  charge  and  must  justify  the 

precise  charge,  328,  342,  550. 
no  such  thing  as  a  half-way  justification,  332». 
must  be  of  the  meaning,  333«.,  340/i.,  341. 
of  innuendo^  556ft.,  341. 
requisites  of  plea  of,  341  n.,  550,  557. 
withdrawing  on  trial,  475. 
failing  in  part,  559. 

plea  of,  not  sustained,  when  evidence  of  malice,  608. 
plea  of,  construed  against  the  pleader,  554w. 
how  proved,  613. 
of  divisible  allegations,  331. 
need  not  go  further  than  the  charge,  338. 
must  extend  to  every  part  of  the   matter  which  could  form   a 

ground  of  action,  SS9n. 
of  a  charge  of  perjury,  333n.,  Soon.,  340. 
of  the  fact  sufficient,  without  denying  the  innuendoes  and  epithets, 

341n. 
motive,  manner  and  intention,  immaterial  to  a,  341  n. 
of  intent  necessary,  where  intent  charged,  341  n. 
must  be  of  the  sense  imputed  in  the  innuendo,  341. 
of  innuendo  when  unnecessary,  341,  556n. 
plaintiff  entitled  to  judgment  for  part  not  justified,  340«. 
by  the  occasion,  318«. 
some  libels  do  not  admit  of,  318n. 

See,  Defense,  Perjury,  Truth,  Plea. 


K 

KENTUCKY,  calling  a  woman  whore  is  actionable  in,  233ft.,  234ft. 

charging  a  man  with  fornication  in,  is  actionable,  238ft. 
KEY,  charge  of  stealing,  226ft. 
KIDNAPPING,  charge  of,  is  actionable,  247. 
KILL,  KILLED,  KILLING,  meaning  of  the  terms,  191. 
KILLING,  charge  of,  actionable,  223. 

a  horse,  charge  of  actionable,  236. 

and  salting  a  hog,  charge  of,  not  actionable,  240. 

charging  a  physician  with  killing  a  patient  with  physic  not 
actionable,  281ft. 


678  INDEX. 

KNAVE,  import  of  the  term,  191,  236rc. 

charge  of  being,  is  actionable,  236,  247n. 
See,  Rebellious  Knave,  Traitor  Knave,  Traitorous  Knave, 
Thievish  Knave,  Bankrupt  Knave,  Pocky  Knave,  Bribing 
Knave,  Bankruptcy  Knave,  Leprous  Knave, 

KNOWLEDGE  of  plaintiff,  how  it   affects  the   meaning  of  language, 
178. 
of  plaintiff,  when  to  be  alleged,  178n. 
See  Scienter. 
KNOWN,  import  of  the  term,  191. 


LACEMAN,  words  concerning,  274w. 

LAMPOONER,  defined,  61ra. 

LANDLORD  and  tenant,  communications  between,  how  far  privileged, 

411. 
LAND-MARKS,  charge  of  removal,  involves  moral  turpitude,  208. 

charge  of  removing,  is  actionable,  237. 
LAND  SURVEYOR,  words  concerning,  278. 

LANGUAGE,  formerly  no  action  for,  unless  the  words  if  true,  would 
endanger  life,  lOln. 
joint  publication  of,  152. 
construction  of,  159,  165. 
ambiguous  or  unambiguous,  159. 
kinds  of  ambiguity  of,  160. 

ambiguous,  as  to  whether  it  concerns  a  person  or  a  thing, 
163. 
how  construed,  179». 
may  give  a  right  of  action  when  it  concerns  one  in  trade, 
although  not  actionable  as  applied  to  an  individual  as 
such,  164. 
a  means  of  effecting  injury,  57. 
ancient  laws  against  offenses  by,  95. 
oral  or  written,  58. 
effect  of,  59,  78. 

coarseness  of,  in  former  times,  98». 
is  not  a  trespass,  58». 
can  have  no  effect  until  published,  78. 
must  assume  the  form  of  propositions,  78. 
must  concern  a  person  or  a  thing,  78. 


INDEX.  679 

LANGUAGE — continued. 

effect  of  its  publication   must  be  direct  or  indirect,  or 

both,  79. 
direct  effects  of,  79. 

effect  of,  the  same  whether  oral  or  written,  79. 
must  produce  some  effect,  80. 

impossible  to  anticipate  all  the  indirect  effects  of,  80. 
affects  the  reputation,  80. 
actionable  per  se,  and  language  actionable  by  reason  of  special 

damage,  distinction  between,  203. 
supposed  origin  of  such  distinction,  97. 
effect  of  time  on  meaning  of,  171. 

effect  of  extraneous  circumstances  upon  meaning  of,  172. 
what  is  actionable,  202.  _ 
actionable  per  se,  203. 
jury  to  determine  meaning  of,  476,  592. 
to  be  set  forth  in  complaint,  522. 
presumed  to  be  false  and  malicious,  598. 
evidence  of  facts  alleged,  509,  596. 
evidence  of  malice,  607. 

See  Actionable  Language,  Construction, 
Libel,  Slander,  Words. 
LARCENY,  what  will  amount  to  a  charge  of,  183, 192,  226n. 

in  Illinois,  child  under  ten  years  cannot  be  guilty  of,  214». 
charge  of,  actionable,  225. 

See  Robbery,  Stealing,  Thief. 
LAW  BUSINESS,  arises  from  difficulty  of  definition,  76». 
LAW  MAXIMS,  not  to  be  received  as  axioms,  127w. 
LAW  of  libel,  what  understood  by,  64,  70. 
denounced  as  vague,  65. 
ecclesiastical,  part  of  English  common  law,  63». 
no  status  in  New  York,  Q3n. 
LAWSUIT,  implies  a  judicial  proceeding,  2S0n. 
LEATHER  GUN,  shooting  out  of,  courts  take  notice  of  meaning  of,  109n. 

See  Shooting. 
LEGAL  EXCUSE,  what  is,  109. 

distinction  between,  and  defense,  110. 
LEGISLATIVE  PROCEEDINGS  are  privileged,  342,  346. 
supposed  to  be  secret,  343. 
when  to  be  with  open  doors,  344. 
publication  of,  how  far  privileged,  345. 
publication  of,  unlawful,  343. 


680  INDEX. 

LEGISLATOR,  privilege  of,  342,  345,  345». 

See  Member  of  Parliament. 
LEGISLATURE,  petition  to,  is  privileged,  344. 
LEPROSY,  charge  of  having,  is  actionable,  242. 
LEPROUS  KNAVE,  actionable,  242. 
LETTER  CARRIER,  words  of,  258. 
LETTERS,  confidential,  not  privileged,  389?i. 
post-marks  on,  583». 

See  Breaking  Open,  Private  Letters. 
LEWD,  charging  a  judge  with  being,  is  actionable,  287. 
LIABILITY,  extent  of,  110. 

of  defendant,  how  proved,  592. 
LIAR,  what  imports  a  charge  of  being,  192. 
charge  of  being,  not  actionable,  239. 
charge  of  being,  actionable  if  in  writing,  247. 
charge  of  being,  against  a  merchant's  clerk,  actionable,  278. 
charge  of  being,  against  a  minister,  actionable,  284». 
charge  of  being,  against  a  judge,  actionable,  287w. 
charge  of  being,  how  justified,  553. 
LIBEL,  what  it  is,  60,  63, 77. 

action  not  maintainable  for  cost  of  printing,  501n. 
remedy  for,  63. 

dies  with  plaintiff,  498. 
not  assignable,  498. 
not  within  actions  for  slanderous  words,  20Sn. 
kinds  of,  69n. 

and  slander,  distinction  between,  67,  68n. 
proposal  to  assimilate,  102ra. 
no  definition  of,  l\n. 
attempts  to  define,  71, 77. 
statutory  definitions  of,  75w. 

uncertain  when  remedy  by  action  for,  was  introduced,  93. 
gist  of  action  for,  93,  246. 
consists  of  three  acts,  115. 
essential  element  of,  115. 

to  constitute,  language  must  be  defamatory,  115. 
must  language  be  false,  115. 
must  the  publication  be  malicious,  117. 
in  newspaper,  statutory  provisions  as  to,  440/t. 
enjoining  publication  of,  by  injunction,  91». 
by  corporation,  456. 

See  Slander  of  Title,  Slander,  Actionable  Language, 
Conspiracy,  Action. 


INDEX.  681 

LIBELLER,  who  is,  60. 

and  satirist,  distinction  between,  61. 

charge  of  being,  is  actionable,  247. 

could  not  take  as  devisee,  nor  make  a  will,  247w. 
LIBELLI,  cards  of  the  races  so  called,  72 n. 

LIBELLOUS  JOURNALIST,  charge  of  being,  is  actionable,  247. 
LIBELLOUS,  meaning  of,  69?i. 
LIBERTY  of  the  press,  437. 
LICENSE  to  trade,  need  not  be  alleged,  259. 

want  of,  must  be  set  up  as  a  defense,  260. 
LIEN  of  attorney,  not  a  ground  for  denying  a  new  trial,  492w. 
LIEUTENANT-GOVERNOR,  words  concerning,  290. 

petition  to,  is  privileged,  384. 
LIMAR,  meaning  of  the  term,  172/i. 
LIME-BURNER,  words  concerning,  276. 
LIMITATION,  time  of,  464. 
LIVERY-STABLE  KEEPER,  words  of,  257 n. 
LODGE  of  Odd  Fellows,  charges  preferred  to,  not  privileged,  385. 
LOOSE  WOMAN,  charge  of  being  a,  actionable,  234. 
LORDS,  lives  of,  not  to  be  published,  344rc. 

committee  of  House  of,  is  a  public  court,  374. 
See  Member  of  Parliament. 
LYING,  justifying  charge  of,  334. 


M 

MADE  AWAY  WITH,  does  not  impute  larceny,  192. 
MADMEN,  tacitly  exempted  out  of  all  law,  434. 
MAGISTRATE,  language  concerning,  371ra.,  287n. 

report  of  proceedings  before,  privileged,  375. 
See  Justice,  Judge. 
MAIL,  the  U.  S.,  charge  of  robbing,  225. 
MAINE,  statutory  definition  of  libel  in,  Ion. 
MAINTAINER  of  suits,  not  actionable,  236w. 
what  is  meant  by,  117. 
See  Barrator. 
MALICE,  is  really  bad  intent,  121. 
nonsense  concerning,  117m. 
meaning  of,  117,  121,  122, 123,  156«. 

division  of,  into  malice  in  law,  and  malice  in  fact,  124,  404. 
how  far  necessary  to  constitute  a  wrong,  126, 154, 156. 
necessary  to  a  cause  of  action  concerning  a  thing,  307. 

44 


682  LNDEX. 

MALICE — continued. 

need  not  be  alleged  in  complaint,  ISOn.,  131».,  521. 

falsehood  is  evidence  of,  599,  433. 

must  be  proved,  126/a. 

an  element  of  damage,  lSln. 

when  evidence  of,  to  be  given,  129^.,  131,  321,  467. 

proof  of,  598,  603. 

on  the  face  of  the  publication,  607. 
See  Intention. 
MALICIOUS   PROSECUTION,  what  it  is,  and  how  it  differs  from 
slander  and  libel,  347. 
no  remedy  for,  in  an  action  for  slander  or  libel,  348. 
when  maintainable,  347. 
effect  of  recovery  in,  437. 
MALICIOUS  TRESPASS,  charge  of  committing,  not  actionable,  215. 

See  Trespass. 
MALICIOUSLY,  meaning,  123. 

wrongfully  and  injuriously  not  equivalent  to,  131«. 
sometimes  equivalent  to  scienter,  I23n. 
MAN,  how  distinguished  from  other  animals,  440/&. 

See  Woman. 
MAN  FRIDAY,  judicial  notice  of  the  meaning  of  the  term,  lQ9n. 

not  actionable  words,  172». 
MANSLAUGHTER,  what  words  impute,  2S2n. 

MARINE  COURT  of  New  York,  has  jurisdiction  of  actions  for  slander 
and  libel,  464. 
removal  of  actions  into,  464». 
MARINER.     See  Master  Mariner. 
MARKS  on  cattle,  charge  of  altering,  involves  moral  turpitude,  209. 

charge  of  altering,  actionable,  236. 
MARL,  charge  of  stealing,  196. 
MARRIAGE,  loss  of,  is  special  damage,  293,  300. 
how  alleged  in  the  complaint,  543. 

charging  a  married  man  with  going  through  ceremony  of, 
with  an  actress,  is  actionable,  249. 
MARRIED  WOMAN,  language  concerning,  206. 

charge  of  stealing  goods  of,  when  actionable,  185«.,  214rc. 
may  be  held  to  bail,  465. 
may  sue  for  slander  or  libel,  206,  499,  646. 
cannot  sue  her  husband  for  slander  or  libel,  499. 
See  Husband  "and  Wife,  Wife. 
MARYLAND,  what  language  is  actionable  in,  206,  233rc. 
MASON,  words  of,  283. 


INDEX.  683 

MASS,  charge  of  going  to,  actionable,  211n. 

MASTER  MARINER,  charge  of  drunkenness  against,  is  actionable,  242«. 
charge  of  selling  consignment  and  pocketing  proceeds,  277. 
MASTER,  liable  for  acts  of  his  servant,  156. 

and  servant,  effect  of  relation  of,  407/*.,  410,  411,  421n. 

right  of  master  to  give  character  to  servant,  420, 
424,  635. 
See  Servant. 
MATHEMATICS,  why  certain,  76. 
MAXIMS,  not  to  be  received  as  axioms,  127«.. 
MAYOR,  words  concerning,  287. 

language  by,  is  privileged,  362re. 
MEANING,  the  term,  how  used,  177w. 

opinion  of  witness  as  to,  not  allowed,  592. 
See  Construction,  Innuendo. 
MEETINGS,  when  reports  of  proceedings  at,  are  privileged,  381. 

See  Public  Meeting. 
MEMBER  of  Congress,  words  concerning,  290. 

of  Parliament,  words  concerning,  289. 

when  he  may  refuse  to  testify  as  a  witness,  587w. 
cannot  as  such  be  guilty  of  conspiracy  to  libel,  343». 
privilege  of  speech  of,  342,  345. 
may  publish  to  his  constituents  a  speech  delivered  in 
Parliament,  345». 
See  Legislator. 
MEMORIAL.     See  Petition. 
MENTAL  DISTRESS  is  not  special  damage,  298. 
MERCANTILE  AGENCY,  privilege  of,  415. 

number  of  suits  against,  416?i. 
MERCHANT,  charge  of  keeping  false  account  books,  266. 
charge  of  being  a  swindler  actionable,  276«. 
words  of,  268,  270». 
See  Trader. 
MERCHANT'S  CLERK,  words  concerning,  278. 
METHODIST  MINISTER,  language  concerning,  284n. 

See  Minister. 
MICHIGAN,  wrhat  language  actionable  in,  by  statute,  206. 
MIDWIFE,  words  concerning,  282. 
MILK  PURSE,  judicial  notice  of  meaning  of,  169». 
MILLER,  words  concerning,  173n. 
MINISTER  of  the  Gospel,  words  of,  227,  264,  272».,  284,  295,  453. 

not  privileged  in  communications  with  members  of 
his  congregation,  413. 


684  index. 

MINISTER  of  the  Gospel — continued. 

charge  of  drunkenness  against,  is  actionable,  242«. 
charge  of  incontinence  against,  261m.,  284. 
justifying  charge  of  blasphemy  against,  336. 
MISCARRIAGE,  charge   of  attempting    to    procure   or   causing,   not 
actionable,  215. 
See  Abortion. 
MISCHIEF,  everything  in  nature  may  be  instrument  of,  bin. 

caused  by  words,  bin. 
MISCONDUCT  in  trade,  charge  of,  is  actionable,  276. 
MISANTHROPIST,  charge  of  being  a,  290. 
MISERABLE  FELLOW,  charge  of  being,  is  actionable,  247. 
MISFEASANCE,  charge  of,  against  a  justice  of  the  peace  is  action- 
able, 286. 
MISSISSIPPI,  what  language  is  actionable  in,  205. 
MISSOURI,  what  language  is  actionable  in,  206,  233m.,  238ra. 
MITIGATING  CIRCUMSTANCES,  what  amount  to,  561. 

setting  up,  in  answer,  561. 
MITIGATION,  rumors  against  plaintiff's  character,  322m.,  342m.,  623. 
naming  previous  publisher,  325m.,  342m. 
truth  cannot  be  shown  in,  unless  pleaded,  621. 
facts  showing  suspicion  of  plaintiff's  guilt,  not  amounting  to 

actual  proof,  623. 
facts  tending  to  prove  truth,  but  falling  short  of  it,  327m. 
plaintiff's  general  bad  character,  630m. 
copied  from  previous  publication,  342m.,  629m.. 

with  omissions,  342m. 
drunkenness  may  be  shown  in,  435,  629m. 
apology  in,  435m. 

pendency  of  other  actions  in,  631m. 
plaintiff's  standing  and  condition  in  society,  625. 
defendant's  acts  and  declarations,  625. 
that  plaintiff,  defendant's  enemy,  630. 
boasts  of  plaintiff  of  having  committed  similar  offenses  to 

those  charged,  630. 
plaintiff  in  the  habit  of  abusing  defendant,  630. 
plaintiff  a  common  libeller,  631. 
former  recovery  against  defendant,  631. 
injunction  to  secrecy,  592. 
retraction  of  the  charge,  625,  626m. 
heat  and  passion,  626. 
former  publications  by  plaintiff,  627m. 
provocation  by  plaintiff,  627,  628. 


INDEX.  685 

MITIGATION— continued. 

controversies  between  plaintiff  and  defendant,  628. 
defendant's  poverty,  629. 
defendant's  apparent  good  humor,  629«. 
previous  publication  by  others,  630. 
benefit  to  plaintiff,  489?*.,  630. 

declarations  of  plaintiff  that  he  had  not  been  injured,  630. 
declaration  by  plaintiff  that  he  believed  the  defendant  was 
not  the  author  of  the  defamation,  630. 
MITIORI  SENSJJ,  construction  in,  179,  252. 
MORAL  OBLIQUITY,  charge  of,  is  actionable,  248. 

how  justified,  556». 
MORAL  TURPITUDE,  what  is  meant  by,  207. 
what  offenses  involve,  208. 

when  charge  must  involve,  in  order  to  be  actionable,  208. 
MORTGAGEE  of  printing  press  not  liable  as  publisher,  \h!n. 
MOTHER,  charge  of  whipping  not  actionable,  241. 

in  law,  charge  of  suing,  not  actionable,  252. 
MOTIVE  synonymous  with  intent,  119. 
MOUNTEBANK,  judicial  notice  of  meaning  of,  169n. 
charge  of  being,  is  actionable,  282n. 
MULATTO,  charge  of  being  a,  when  actionable,  172n.,  241. 
MURDER,  charge  of,  when  not  actionable,  173,  223. 
what  amounts  to  charge  of,  192. 
charge  of  soliciting  to  commit,  involves  moral  turpitude, 

209. 
charge  of  committing,  in  Ireland,  214». 
MURDERER,  charge  of  being  a,  actionable,  223. 

charge  of  being,  not  actionable  by  reason  of  context, 

160rc.,  223n. 
report  of  speech  of,  not  privileged,  375. 
MURDERING  ROGUE,  actionable,  220. 
MURDEROUS  QUEAN,  not  actionable,  220n. 
MURDEROUS  VILLAIN,  not  actionable,  221. 

N 

NAME,  presumption  from  identity  of,  163». 
NATURAL  RIGHT,  no  such  thing  as,  85,  87 
NEGRO,  harboring,  charge  of,  241. 

giving  a  free  pass  to,  241. 

charge  of  being  akin  to,  241. 

charge  of  hiring,  to  kill  cattle,  241. 


686  INDEX. 

NEW  BOOKS,  how  made,  66n. 

NEW  HAMPSHIRE,  charge  of  fornication  actionable  in,  238rc. 
NEW  JERSEY,  charge  of  fornication  actionable  in,  234rc. 
NEWSPAPER,  receiver  to  conduct,  liability  of,  loin.,  646. 
proprietor,  liability  of,  157,  439. 

words  concerning,  445 n. 
in  New  York,  privilege  of,  345,  346«. 
editor,  liability  of,  157/z. 

rights  of,  439,  441,  296rc.,  346^.,  364».,  444h, 
proposed  law  as  to,  439?i. 
reporter,  rights  of,  364/i.,  370>i. 
when  it  may  be  read  in  evidence,  590. 
proof  of  publication  of,  587,  589. 
actionable  language  concerning,  308«. 
advertisement  in,  when  privileged,  394,  417. 
law  does  not  take  judicial  cognizance  of,  439. 
statutory  provisions  relating  to  libels  in,  440/*. 
called  an  opinion  mill,  438?i. 
NEW  TRIAL,  before  what  judge,  472. 

for  excessive  damages,  492. 

for  insufficient  damages,  493. 

because  verdict  for  defendant,  instead  of  for  plaintiff, 

with  nominal  damages,  494. 
because  innuendoes  unwarranted,  495. 
on  one  of  several  issues,  495n. 
for  newly  discovered  evidence,  494. 
because  verdict  against  weight  of  evidence,  114».,  495. 
reducing  amount  of  damages  on  motion  for,  494. 
not  denied  because  it  may  affect  the  attorney's  lien,  492*. 
on  one  of  several  issues  not  allowed,  495n. 
NEW  YORK,  what  language  actionable  in,  by  statute,  206. 
NEW  YORK  CITY,  when  language  in,  amounts  to  a  breach  of  the 

peace,  92«. 
NOISES,  action  for,  57rc. 
NOMINAL  DAMAGES,  when  proper,  486,  627». 

where  jury  not  limited  to  giving,  470?;.,  488. 
new  trial  not  granted  because  verdict  should  have  been 
for,  494. 

See  Damages. 
NONSUIT,  action  for  same  cause  after,  496. 

NORTH  CAROLINA,  what  language  is  actionable  in,  206,  233n.,  234». 
NOTARY,  action  against,  for  wrongly  protesting  a  note,  58«. 
NOTICE,  as  a  substitute  for  a  plea  or  answer,  560. 


INDEX.  687 

NUISANCE,  action  for,  compared  to  action  for  slander,  57m.. 
NOT  GUILTY.     See  General  Denial. 
NUMBER,  allegations  of,  are  divisible,  201. 


o 

OBLIGATION,  duty  is,  83. 

OBLIQUITY.     See  Moral  Obliquity. 

OBITUARY  NOTICE,  publishing  of  one  alive  is  actionable,  249. 

OBSCENE  WORDS  need  not  be  set  forth  in  pleading,  524. 

OCCASION  upon  which  an  act  is  enacted,  90. 

justification  implied  from  the,  31 8n. 
materiality  of  the,  451  n. 

whether  it  gives  a  privilege  is  a  question  of  law,  whether 
the  privilege  has  been  used  in  good  faith  is  a  question 
of  fact,  485w. 
OCCUPATION  of  plaintiff,  how  proved,  596. 

See  Trade. 
ODD  FELLOWS.     See  Lodge. 
OFFER  by  defendant  to  allow  judgment,  495. 
OFFICE,  words  concerning  one  in,  254,  265,  286. 

of  profit  and  of  honor,  distinction  between,  266n. 
words  concerning  candidate  for,  431. 
proof  of  appointment  to,  268n. 
See  Candidate,  Trade. 
OHIO,  calling  a  woman  whore  is  actionable  in,  233w.,  234/i. 

charging  a  man  with  fornication  not  actionable  in,  238ft. 
new  trial  in,  494?i. 
OPINION,  words  denoting,  not  actionable,  217. 

of  witnesses,  when  receivable,  166?i.,  593. 
when  privileged,  403,  453. 
criticism  is,  451. 

and  fact,  supposed  distinction  between,  21 9n.,  453. 
OPTICIAN,  language  concerning,  283. 
ORAL  language,  what  is,  58. 

construed  the  same  as  written  language,  165. 
less  capacity  for  injury  than  written  language,  67. 
what  actionable,  206. 
ORIGINAL  WRITS  abolished,  93n. 
OUTLAW,  action  by,  497. 

song  of  the,  lSQn. 
OUT-PUTTER,  meaning  of  the  term,  172». 
OVERSEER,  words  of,  225/*.,  289,  434. 
OVERSEERS'  MEETING,  proceeding  at,  how  far  privileged,  379. 


688  index. 


PACKING  A  JURY,  charge  of,  193,  241. 
PAPIST,  not  actionable,  240n. 
PARDON,  effect  of,  on  right  of  action,  211. 
PARENT,  not  liable  for  acts  of  children,  157». 
PARISH  MEETING,  proceedings  at,  how  far  privileged,  379. 
PARLIAMENT,  proceedings  of,  in  theory,  conducted  with  closed  doors, 
343. 
petition  to,  is  privileged,  344. 
See  Legislative  Proceedings,  Members  of  Parliament. 
PARTIAL,  charging  a  judge  with  being,  is  actionable,  287. 
PARTICULARS.     See  Bill  of  Particulars. 
PARTIES  to  action,  for  joint  publication,  152,  153. 
privilege  of,  354,  356,  357«. 
may  appear  by  attorney,  356. 
may  conduct  their  suits  in  person,  356. 
generally,  497. 
PARTISAN,  charge  of  being  a,  290. 
PARTY  plaintiff,  who  may  be,  163n. 
PARTNERS,  actions  against,  153. 
charge  against,  224. 
words  concerning,  261. 
parties  to  actions,  by  and  against,  501. 
PASSING  counterfeit  money,  charge  of,  not  actionable,  240. 
PASSION.     See  Towering  Passion. 
PASTOR.     See  Minister  of  the  Gospel. 
PATRONAGE,  meaning  of,  182. 

PAUPER,  inducing  him  to  bring  an  unfounded  action,  349«. 
PAWNBROKER,  words  concerning,  274«. 
PAYMENT  into  court,  defense  of,  435«. 

PECUNIARY  LOSS,  the  gist  of  an  action  for  slander  or  libel,  103, 
107,  260. 
is  special  damage,  107«.,  293. 
PEDLAR,  a  rogue  by  statute,  258«. 

See  Bogus  Pedlar. 
PENCIL  MARK  is  writing,  59». 

PENITENTIARY  OFFENSE,  charge  of  committing,  is  actionable,  237. 
PENNSYLVANIA,  false  swearing  in  ecclesiastical  court  of,  230n. 

charge  of  fornication  actionable  in,  233h.,  238». 
charge  against  public  officer  in,  432?;. 
PERIL.     See  Danger  of  Punishment. 


INDEX.  689 

PERJURED  KNAVE,  not  actionable,  by  reason  of  the  context,  176rc., 

22  In.,  227ra.,  228». 
PERJURED  PRIEST,  actionable,  284. 
PERJURED  ROGUE,  actionable,  228rc. 
PERJURY,  what  amounts  to  charge  of,  193. 

charge  of,  how  justified,  333«.,  335w.,  340,  557,  614, 615. 
charge  of  procuring  one  to  commit,  is  actionable,  215. 
charge  of,  actionable,  227. 
in  swearing  to  a  promise  void  by  the  statute  of  frauds, 

232/i. 
complaint  for  charge  of,  514«.,  515ra. 
PERSON,  language  concerning  the,  161. 
PERSONAL  INVECTIVE,  justifying  charge  of,  339. 
PETITION  to  parliament,  when  privileged,  384. 
for  redress,  when  privileged,  383. 
circulating,  to  obtain  signatures  is  allowable,  392- 
PETTYFOGGING,  charge  of,  against  attorney,  actionable,  281n. 
PHYSICIAN,  words  of,  252re.,  272,  281w. 

See  Druggist. 
PICKPOCKET,  charge  of  being,.  197». 

is  actionable,  236. 
PIEPOWDER,  court  of,  64?i. 
PIGEONED,  charge  of  having  been,  by  plaintiff,  a  minister  of  the 

gospel,  not  actionable,  285. 
PILFERING,  meaning  of  the  term,  194. 

charge  of,  when  actionable,  225. 
PIMP,  meaning  of,  172rc. 
PLACARD,  proof  of,  591. 
PLACE  of  publication,  how  far  material,  520,  144. 

of  trial,  465. 
PLAINTIFF,  must  be   identified   in   the   alleged  defamatory  matter, 
163w.,  516. 
need  not  be  directly  named,  163,  168n. 
if  language  not  applicable  to,  innuendo  cannot  make  it 

so,  163/i.,  528,  538. 
what  language  does  not  sufficiently  point  to,  163n. 
what  he  must  show  to  sustain  an  action,  lQ7n. 
who  may  be,  497. 
publication  by,  how  alleged,  518. 
effect  of  death  of,  498. 

evidence  of  good  reputation  of,  to  aggravate  damages,  597. 
evidence  of  his  rank  and  condition  to  aggravate  damages, 
600. 


690  INDEX. 

PLAINTIFF— continued. 

evidence  of  occupation  of,  596. 

distress  of  mind  not  damage  to,  602. 

ill-will  of  defendant  towards,  to  aggravate  damages,  602. 

evidence  for,  582  el  seq.     See  Evidence. 

withdrawing  a  cause  of  action  at  the  trial,  475. 

general  reputation  of,  is  put  in  issue,  616. 

inquiry  into  reputation  of,  618. 

evidence  of  standing  and  condition  in  society  to  mitigate 
damages,  625. 

evidence  of  acts  of,  in  mitigation,  626,  et  seq. 

benefits  to,  by  libel,  cannot  be  shown,  630».,  489n. 

execution  against  person,  for  costs,  465. 

conviction  of  for  the  imputed  offense,  328n. 

trial  of  for  imputed  offense,  498. 
PLEA,  formerly  only  one,  allowed,  330. 

to  whole  or  part  of  complaint,  331. 
effect  of,  not  interposing,  470. 
withdrawal  of,  on  trial,  475. 
answer  corresponds  to,  546. 
that  publication  by  mistake,  546w. 
of  general  issue,  547. 
in  bar  must  answer  the  whole  count,  548. 
of  truth,  requisite  of,  550. 
justifying  a  charge  of  crime,  557. 
of  justification  failing  in  part  fails  altogether,  559. 
notice  in  lieu  of,  560.     See  Answer. 
of  apology  and  payment  into  court,  435n.,  440n. 
of  accord  and  satisfaction,  435. 
of  former  recovery,  437. 
of  justification,  inspection  to  prepare,  468. 
withdrawing  on  the  trial,  475. 
PLEADING,  how  construed,  180».,  182». 

defamatory  matter  in,  will  it  give  a  right  of  action  for 
349. 

defamatory  matter  in,  may  be  struck  out,  351. 

certainty  in,  526. 

carried  to  excess,  181. 

formerly  in  Latin,  51 9n. 

defamatory  matter  in,  when  client  not   responsible  for, 
157». 

mitigating  circumstances,  561. 

and  proof  to  correspond,  565. 

See  Answer,  Complaint. 


INDEX.  691 

PLUNDERED,  does  not  mean  a  felonious  taking,  194. 

not  actionable,  240. 
POCKY  RASCAL,  query  if  actionable,  220%. 
POCKY  WHORE,  not  actionable,  220. 
POISON,  meaning  of  the  term,  194. 

charge  of  administering,  223,  236%.,  237,  271. 
POLICE  OFFICER,  words  concerning,  288,  369. 
words  published  to,  382%. 
See  Constable. 

POLTROON,  charge  of  being,  when  actionable  in  Tennessee,  205. 

PORK,  charge  of  stealing,  226. 

PORK  BUTCHER,  words  concerning,  271. 

See  Butcher. 
POSTMARK  on  letter,  proof  of,  583%. 
POSTMASTER,  words  concerning,  217,  289. 

complaint  to,  privileged,  385. 
POTATOES,  charge  of  stealing,  192%. 
POVERTY  of  defendant,  no  mitigation,  629. 
POX,  charge  of  having,  is  actionable,  242. 

See  Small-Pox. 
PRECEDENTS,  value  of,  in  actions  for  words,  171%. 
PRESUMPTION  of  law,  objections  to,  112. 

of  knowledge  of  court  proceedings,  364. 
of  identity,  163n. 
of  continuance  in  occupation,  268. 
of  delivery  of  message,  586%. 
of  illegality  of  plaintiff's  trade,  258%. 
none  of  what  is  not  averred,  180%. 
PRESS,  freedom  of,  437.     See  Newspaper. 
PREVIOUS  RECOVERY.     See  Former  Recovert. 
PRIEST,  language  concerning,  285,  381. 

See  Minister,  Perjured  Priest. 
PRINCIPAL  and  agent,  communications  between,  how  far  privileged, 

410,  412. 
liability  of,  156%. 
PRINTER,  liability  of,  158. 
PRINTING,  writing  includes,  59%. 

PRIVATE  LETTERS,  charge  of  publishing  is  actionable,  249. 
PRIVILEGED  COMMUNICATIONS,  319%. 
kinds  of,  319%. 
not  easily  defined,  322. 

See  Privileged  Publication. 


692 


LNDEX. 


PRIVILEGED  PUBLICATION,  what  is,  154,  319,  321. 
kinds  of,  S19n. 
meaning  of,  320. 
suggested  rule  as  to,  322. 
repetition,  322. 

court  not  inclined  to  extend  doctrine  of,  319n. 
defense  of,  318,  549. 
divided  into  absolutely  privileged  and  conditionally 

privileged,  319. 
in  legislative  proceedings,  342. 
in  judicial  proceedings,  347. 
in  a  pleading,  348. 
in  an  affidavit,  352. 
as. a  witness,  353. 
as  a  party  to  an  action,  354. 
as  advocate,  357. 

in  the  course  of  church  discipline,  376. 
at  public  meetings,  378. 
on  giving  in  charge  to  police  officer,  382n. 
in  seeking  redress,  382. 
confidential  is  not,  402/*. 
to  .protect  person,  property,  or  reputation  of  pub. 

lisher,  393,  418». 
to  protect  rights  of  others,  397. 
giving  advice  or  information,  397. 
when  privileged  ceases,  415,  418,  419. 
See  Truth,  Publication". 

PROCEEDINGS  of  courts,  are  privileged,  352. 
PROCTOR,  justifying  charge  against,  337. 

liability  of  for  defamatory  statements,  358». 
PRODUCTION  of  documents,  when  ordered,  363,  470,  586. 
PROFESSION.     See  Trade. 
PROFITS,  loss  of,  is  special  damage,  293. 
PROHIBITION  in  cases  of  defamation,  96m. 
PROOF.     See  Evidence. 
PROPERTY,  reputation  is,  104». 
PROSPECTIVE  DAMAGES,  not  allowed,  488. 
PROSTITUTE,  what  amounts  to  a  charge  of  being  a,  194. 

charge  of  being,  not  actionable,  233. 

justifying  charge  of  being  a,  333m.,  334m. 

charge  of  having  one  under  protection  or  patronage,  1S2. 
See  Whore. 


INDEX.  693 

PROTECTION,  meaning  of,  182. 

of  person,  property  or  reputation,  publication  for  the 
purpose  of,  are  privileged,  393. 
PROVER  under  bankruptcies,  charge  of  being,  271. 
PUBLICATION  of  language  necessary,  before  language  can  have  any 
effect,  78. 

is  an  indirect  wrong,  86. 

restraining  by  injunction,  91  n. 

to  be  unlawful  must  be  voluntary,  110». 

at  plaintiff's  instance,  150n. 

the  essential  element  of  slander  or  libel,  115. 

meaning  of  the  term,  137. 

mode  of  formerly,  136n. 

necessity  for,  136. 

actionable,  what  is,  137. 

to  husband  or  wife  of  party  affected,  138. 

understanding  necessary  to,  138,  139». 

language  of,  139. 

may  be  of  oral  or  written  language,  140. 

of  summons,  464. 

to  be  alleged  in  complaint,  518. 

how  alleged,  519. 

place  of,  how  alleged,  520. 

time  of,  how  alleged,  520. 

proof  of  time  of,  585/i. 

what  amounts  to,  140,  141,  142. 

oral,  requisites  of,  143. 

in  writing,  requisites  of,  144. 

time  of,  144. 

place  of,  144. 

joint,  cannot  be  of  oral  language,  152. 

by  husband  and  wife,  152,  499. 

privileged,  153,  154. 

proof  of,  583. 

secondary  evidence  of,  587. 

part  may  be  privileged  and  part  not,  398w. 

respecting  one  in  trade,  made  on  request,  403. 

made  without  any  request,  405,  407w. 

by  a  pastor  to  his  parishioners,  413. 

by  customer  respecting  tradesman  with  whom  he  deals,  414. 

made  to  persons  not  interested,  415,  418,  425,  432. 

by  master  respecting  his  late  servant,  420. 

concerning  candidates  for  office,  431. 

See  Privileged  Publication. 


694  LNDEX. 

PUBLIC  COURT,  what  is  a,  374. 

PUBLIC  HOUSE,  not  equivalent  to  bawdy  house,  188. 

PUBLIC  MEETING,  when  reports  of  proceedings  at,  are  privileged,  381. 

proceedings  at,  how  far  privileged,  378. 

right  of  reporters  to  attend,  373«. 

publishing  speech  made  at,  382». 
PUBLIC  OFFICER,  publications  concerning  in  Pennsylvania,  432». 

criticism  of,  441. 

immunities  of,  361  n. 
PUBLIC  ROBBER,  charge  of  being,  195. 
PUBLIC  TRUST,  charge  of  breach  of,  actionable,  266ra. 
PUBLISH,  meaning  of,  136rc. 
PUBLISHED,  meaning  of,  136rc. 
PUBLISHER,  who  is  a,  146. 

in  what  sense  the  term  is  used,  146. 

and  person  liable  as  publisher  not  always  one  and  the  same, 
147,  \55n. 

who  liable  as,  147,  148,  153,  303. 

extent  of  liability,  147,  150. 

belief  of,  when  material,  306. 
in  mitigation,  621. 
See  Newspaper. 

PULPIT,  privilege  of,  4Un. 

See  Sermon. 

PUNISHMENT.    See  Danger  of  Punishment,  Infamous  Punishment. 
PURCHASING  stolen  goods,  charge  of,  is  actionable,  236. 


Q 

QUACK,  actionable  of,  a  barrister,  282». 
of  a  physician,  282. 
of  an  optician,  283. 
QUESTION,  charge  by  means  of  a,  219. 
of  fact,  who  to  decide,  113. 

whether  language  is  concerning  a  person  or  a  thing,  317. 
and  of  opinion,  distinction  between,  219/». 
See  Jury. 

QUESTION  of  law,  who  to  decide,  113. 

if  occasion  privileged,  485«. 
QUESTIONS  for  jury,  whether  ambiguous  reference,  or  initials,  or  fic- 
ticious name  applies  to  plaintiff,  165ft. 


INDEX.  695 

QUESTIONS  for  jury— continued. 

whether  the  language  concerns  the  plaintiff  in  any  special  capa- 
city, 270ra. 
whether  a  report  is  a  fair  one,  368,  370. 
whether  privilege  exercised  in  good  faith,  404,  485». 
whether  there  is  any  excess  in  the  comment,  445n. 
amount  of  damages,  486. 
intention  of  defendant,  599. 


R 

RAPE,  charge  of  committing,  238. 

RASCAL,  charging  a  judge  with  being  a,  is  actionable,  287w. 

charging  a  merchant  with  being  a,  is  actionable,  279. 

charge  of  being,  not  actionable,  240. 

charge  of  being,  actionable  if  in  writing,  247. 
RAVISHING,  charge  of,  221. 

READ,  charge  of  being  unable  to,  meaning  of,  199. 
REBEL,  action  by,  497. 
REBELLIOUS  KNAVE,  not  actionable,  220. 
REBUS,  defaming  by  means  of,  168ra. 
RECEIVER,  liability  of,  157n.,  646. 

right  of  action  for  slander  or  libel,  does  not  pass  by  assignment 

to,  498. 
of  stolen  goods,  charge  of,  actionable,  236. 
RECOGNIZANCE,  not  forfeited  by  words,  58n. 
RECOVERY,  when  a  bar  to  a  subsequent  action,  261. 
REDRESS,  language  published  in  seeking,  is  privileged,  382. 
REFEREE,  actions  of  slander  or  libel  may  be  tried  by,  472. 
REGISTER  of  protests,  publication  of,  is  privileged,  375. 
REGRATOR,  charge  of  being  a,  not  actionable,  21  On. 
RELATIONS,  confidential  communications  between,  409». 
REMEDY  for  libel,  63. 

for  slander,  62. 

for  defamation,  63. 

law  provides,  90. 

by  action,  91. 

for  slander  and  libel,  uncertainty  as  to  introduction  of,  95. 

party  taking  in  his  own  hands,  97». 

referring  to,  to  illustrate  right,  8Qn. 
REMOVAL  of  action,  into  Marine  Court,  464w. 
REMOVING  land-marks,  charge  of  involves  moral  turpitude,  208. 


696 


INDEX. 


EENTER  of  tolls,  words  of,  258. 
REPEAL  of  statute,  effect  of  on  right  of  action,  213. 
REPETITION,  what  is,  147. 
none  of  speech,  147. 
effect  of,  301. 
who  liable  for,  301. 
not  a  ground  of  defense,  322. 
as  evidence  of  malice,  604,  605. 
REPORT  of  judicial  proceedings,  is  privileged,  364,  367. 
what  is  a  fair  report,  367. 

of  ex-par te  proceedings,  how  far  privileged,  370,  373. 
of  proceedings  of  a  court  where  a  contempt,  370n. 
of  commissioner,  not  privileged,  375n.,  374. 
of  inspector  of  charities,  375n. 
of  Committee  of  House  of  Lords,  374. 
of  proceedings  before  registrar  in  bankruptcy,  374. 
of  police  commissioners,  375». 
publication  of,  392. 

of  speech  of  convict,  not  privileged,  375?i. 
of  speech  at  public  meeting,  not  privileged,  378,  381. 
REPORTER,  privilege  of,  373». 
REPUBLICATION,  what  is,  147. 

cannot  be  of  oral  language,  147. 
REPUTATION,  may  be  injured  by  acts,  5Sn. 
what  it  is,  80. 
action  for  injury  to,  63». 
language  affects,  80. 

injury  to,  differs  from  injury  to  person  or  property,  92. 
not  an  absolute  right,  88. 
denned,  S0n.,  61 6». 
is  property,  104». 
how  the  law  protects  it,  105. 
value  of,  105n. 
of  plaintiff,  in  aggravation,  597. 

in  mitigation,  328».,  625. 
of  plaintiff  in  issue,  616. 
See  Character. 

RESPONDEAT  SUPERIOR,  principle  of,  156. 
RETRACTION  of  charge  in  mitigation,  625. 
RE-TRIAL,  before  what  judge,  472. 

See  New  Trial. 
RETURNED  CONVICT,  actionable,  212. 


INDEX. 


697 


RIGHT,  the  opposite  to,  is  not  a  wrong  but  a  duty,  83. 
defined,  83. 
object  of,  84. 
and  duty  reciprocal,  84. 
pertains  to  persons,  not  to  things,  84. 
exercise  of,  is  optional,  84. 
how  it  must  be  exercised,  84. 
in  some  sense  the  result  of  law,  84. 
every  act  is  exercise  of,  &c,  85. 
different  under  different  laws,  86. 
cannot  catalogue,  87. 
wrong  is  an  invasion  of,  87. 
not  proper  to  say  law  prescribes,  89. 
impossibility  of  defining,  90. 
kinds  of,  88w. 
of  action,  not  assignable,  498. 

when  it  survives,  498. 
ROBBED— ROBBING— meaning  of  these  terms,  195,  278». 
charge  of  having,  225,  240. 
secreted  not  equivalent  to  robbed,  241. 
ROBBERS,  charge  of  being,  not  actionable  by  reason  of  context,  223/t. 
ROBBERY,- charge  of  attempt  to  commit,  not  actionable,  215m.,  240. 
charge  of,  actionable,  225. 
charge  of,  when  not  justified,  427n. 
ROBBING,  charge  of,  actionable,  221. 
ROGUE,  charge  of  being,  is  actionable,  236,  237,  247, 287w. 
is  not  actionable,  239. 
of  record,  held  actionable,  2S9n. 
See   Arrant  Rogue,  Buggering  Rogue,    Bankrupt   Rogue, 
Murdering  Rogue,  Pedlar,  Tinker,  Cuckoldy  Rogue, 
Perjured  Rogue,  Damned  Rogue. 
ROMAN  CATHOLIC  PRIEST.     See  Priest. 
ROMAN  CIVIL  LAW,  administered  in  England,  97. 
RUGGED  RUSSIAN  BEAR,  justifying  charge  of  being  a,  340. 
RULES  relating  to  remedy  differ  from  rules  determining  when  a  wrong. 

done,  93. 
RUMORS  not  a  defense,  342rc. 

in  justification,  342«. 
RUNAGATE,  meaning  of  the  term,  258ra. 
RUSSIANS  dread  verbal  insult  more  than  a  blow,  68n. 


45 


698  ESTDEX. 

S 

SABLE,  charge  of  stealing,  196. 

SALE.     See  Unlawful  Sale. 

SATIRIST  differs  from  libeller,  61. 

SAXON  LAWS  in  England,  97. 

SCANDAL  defined,  58n. 

SCANDALOUS  and  familiar  converse,  meaning  of  the  phrase,  189m. 

SCANDALOUS  MATTER  in  a  plea  may  be  struck  out,  351. 

in  a  "will  may  be  suppressed,  646. 
SCANDALUM  MAGNATUM,  not  known  in  United  States,  176. 
SCHOOL  COMMITTEE,  communication  to,  how  far  privileged,  385«. 
SCHOOL-HOUSE,  charge  of  burning,  222rc. 
SCHOOLMASTER,  words  concerning,  282,  332. 
SCHOOLTEACHER,  words  of,  272,  385».,  399>i.,  258. 
SCIENTER,  when  to  be  alleged,  178n.,  236n. 
when  implied,  267n. 

See  Knowledge. 
SCOLDING,  indictable,  C,2n. 

SCOUNDREL,  charge  of  being,  not  actionable,  239. 
SCREWED,  meaning  of,  172n. 
SECOND  ACTION,  when  barred,  263. 

staying  proceedings  in,  465rc. 
staying  proceedings  in  until  costs  of  first  action 
paid,  496. 
See  Former  Recovery. 
SECRESY,  injunction  of,  592. 

SECRETARY  of  State,  letters  to,  privileged,  388,  389. 
of  Treasury,  report  to,  privileged,  386. 
of  War,  letters  to,  privileged,  385,  388. 
SECRETING,  charge  of,  does  not  amount  to  a  charge  of  robbery,  241. 
SECURITY  for  costs,  when  required,  465. 

SEDITIOUS  SERMON,  charge  of  preaching,  is  actionable,  284. 
SEDUCER,  charge  of  being,  is  actionable,  247n. 
SELF-DEFENSE,  language  published  in,  is  privileged,  359,  393. 
SENATOR,  words  concerning,  269. 
SENTIMENTS,  no  redress  for  outrage  of,  97. 
SEPARATE  ACTIONS  for  same  libel,  436». 
SERIOUS  AMOUNT,  justifying  charge  of  stealing  to  a,  337. 
SERMON,  how  far  privileged,  41Sn.,  454. 

See  Seditious  Sermon. 
SERVANT,  when  liable  as  publisher,  1 54. 

employer  liable  for  acts  of,  156,  421. 


INDEX.  699 

SERVANT— continued. 

charge  against,  when  privileged,  382». 

communication   to  employer  concerning,  when   privileged, 

406. 
giving  character  to,  420,  424. 

cannot  maintain  action  against  master  for  refusing  to  give  a 
character,  423ft. 

See  Domestic  Servant,  Master. 
SHAREHOLDER.     See  Stockholder. 
SHAVING  PURPOSES,  meaning  of  the  term,  195. 

charge  of  putting  money  in  Wall  street  for  not  action- 
able, 182/i.,  252. 
SHEARING.     See  Sheep. 
SHEEP,  charge  of  shearing,  227. 
charge  of  stealing,  236. 
SHEEPSTEALER,  charge  of  being  is  actionable,  236. 
SHERIFF,  words  concerning,  288. 
SHIP,  language  concerning,  308?*. 

justification  of  charge  that  ship  unseavrorthy,  333«. 
SHIPMASTER,  words  concerning,  277. 

See  Master  Mariner. 
SHIPOWNER,  words  concerning,  273. 
SHOEMAKER,  words  concerning,  221,  274ft.,  283. 
SHOOTING  out  of  leather  gun,  judicial  notice  of  meaning  of,  169ft. 

charge  of,  is  actionable,  247ft. 
SHOP-KEEPER,  charging  with  keeping  rotten  goods,  actionable,  273. 

See  Tradesman. 
SICKNESS,  is  not  special  damage,  298. 
SIGNS,  a  means  of  injury,  57. 
SLANDER  defined,  59,  77. 

not  indictable,  62ft. 
remedy  for,  62. 

and  libel,  distinction  between,  67. 
consists  of  two  acts,  115,, 
action  for,  not  to  be  encouraged,  179ft. 
corporation  cannot  be  guilty  of,  459. 
a  private  wrong,  62. 

member  of  the  legislature  not  liable  for,  342,  343ft. 
See  Libel,  Words. 
SLANDERER,  who  is,  59. 

SLANDER  OF  TITLE,  part  of  the    law  of  language  concerning  a 
thing,  162. 
not  properly  an  action  for  slander,  162ft. 


700  INDEX. 

SLANDER  OF  TITLE— continued. 
complaint  for,  315n. 
plea  in  action  for,  317n. 
a  metaphorical  expression,  \Q2n. 
what  necessary  to  maintain  action  for,  307. 
to  personal  property,  316. 
to  a  slave,  31 6n. 
SLANDEROUS  RASCAL,  justifying  charge  of  being,  334. 
SLANDEROUS  WORDS,  action  for,  203n. 

charge  of  being  publisher  of,  is  actionable,  247. 
SLAVE,  selling  spirituous  liquors  to,  involves  moral  turpitude,  208. 

slander  of  title  to,  316«. 
SLUT,  calling  a  school-mistress  dirty  slut  actionable,  272. 
SMALL  POX,  charge  of  having,  not  actionable,  242. 
SMITH,  words  concerning,  277. 
SMUGGLING,  charge  of,  is  actionable,  248. 

justifying  charge  of,  335. 
SOLDIER,  actionable  to  charge  a  tradesman  with  being  a,  175«. 
SORCERER,  charge  of  being,  not  actionable,  239. 
SOUNDS  and  signs,  a  means  of  injury,  57. 
SOVEREIGN,  petition  to  the,  is  privileged,  384. 
SOUGHT,  the  term  implies  more  than  intent,  21 6n. 
SOUTH  CAROLINA,  charge  of  stealing  in,  213«. 

calling  a  woman  whore  is  actionable  in,  233/t. 
SPACE,  allegations  of,  are  divisible,  201. 
SPECIAL  CHARACTER,  language  concerning  one  in,  254. 

evidence  of,  596. 
SPECIAL  DAMAGE,  nature  of  291,  202,  107n. 
occupation  supplies  the  place  of,  541  n. 
in  what  it  consists,  291,  297. 
language  actionable  by  reason  of,  291. 
apprehension  of  loss  is  not,  297. 
loss  of  services  of  wife,  when  it  is  not,  298/i. 
occurring  after  a  recovery  in  an  action  for  the  defamation,  299. 
illegal  act  of  third  party,  299. 
effect  of  repetition  is  not,  301. 
must  be  alleged  in  complaint,  162,  541. 
general  issue  is  a  denial  of,  613. 
traverse  of,  improper,  613». 

See  Damage,  Customers. 
SPECIAL  DEMURRERS  abolished  in  England,  543. 
SPEECH,  is  oral  language,  58. 

distinction  between  sound  and  its  signification,  140. 


INDEX.  701 

SPEECH — continued. 

no  repetition  of,  147. 
criminal  prosecution  for,  Q2n. 
in  Parliament,  when  privileged,  342. 
of  convict  on  scaffold,  report  of  not  privileged,  375«. 
of  counsel,  effect  of,  473,  608. 
publication  of,  359. 
at  public  meeting  not  privileged,  3S2»,  378. 
See  Freedom  of  Speech. 
STAGE  AGENT,  words  concerning,  277. 
STAR  CHAMBER,  court  of  criminal  equity,  91n. 
STARVING  A  CHILD,  charge  of,  277. 
STATUES  included  in  effigy,  59. 

STATUTE  OF  LIMITATIONS,  charge  of  having  pled,  not  actionable, 
253. 

See  Limitation. 
STATUTES,  effect  of  repeal  on  right  of  action,  213. 

defining  libel,  75n.,  76/i. 
STAYING  PROCEEDINGS  in  action,  465rc,  496. 
STAYMAKER,  words  concerning,  272. 
STEAL,  meaning  of  the  term,  195. 

STEALING,  what  amounts  to  charge  of,  168/*.,  173?/.,  192,  187w.,  195. 
charge  of,  213ra. 

justification  of  charge  of,  333,  334. 
goods  of  married  woman,  185?i. 
STEAMBOAT,  words  concerning,  307». 
STEAMBOAT  AGENT,  language  concerning,  278. 
STINKING  OF  BRIMSTONE,  charge  of,  is  actionable,  248. 
STOCKBROKER,  words  of,  258.     ■ 
STOCKHOLDERS,  words  concerning,  275rc.,  399». 

meeting,  proceedings  at,  how  far  privileged,  379. 
reports  to  privileged,  392. 
STOLE,  meaning  of  the  term,  195. 

as  good  as,  not  actionable,  227w. 
STOLEN  GOODS,  charge  of  being  receiver  of,  actionable,  236. 
STORE,  charge  of  breaking  into,  227. 
STRAINED,  meaning  of,  172n. 
STRUCK  JURY,  when  it  may  be  ordered,  472. 

STRUCK  OFF  THE  ROLL,  charge  that  an  attorney  was,  how  justi- 
fied, 336. 
STRUMPET,  meaning  of,  233». 

actionable  in  Bristol,  234n. 
SUBORNATION  of  perjury,  charge  of,  227n. 


702  INDEX. 

SUBSCRIBER  to  a  charity,  publication  by,  respecting  the  charity,  410. 
SUFFER,  meaning  of  the  term,  196. 
SUMMONS,  may  be  served  by  publication,  464. 
SUMMING  UP  of  counsel,  on  the  trial,  473. 

SUPERIOR  OFFICER,  reports  to,  how  far  privileged,  385,  386,  387. 
SUPPLEMENTAL  COMPLAINT,  when  allowed,  545. 
SURPLUSAGE,  rejecting  the  innuendo  as,  540. 
SURVEYOR,  language  concerning,  278. 
SURVIVOR  of  right  of  action  for  slander  or  libel,  498. 
SUSPENSION,  justifying  charge  of,  337. 
SUSPICION,  words  denoting,  not  actionable,  217. 
*        and  belief,  distinction  between,  217/i. 

not  a  justification,  331n.,  342. 

in  mitigation,  623. 
SWINDLER,  charge  of  being,  not  actionable,  239. 

charge  of  being,  actionable  if  in  writing,  247. 

charging  a  merchant  with  being,  is  actionable,  276«. 

what  will  not  justify  a  charge  of  being,  332ra.,  551??. 

can  court  take  judicial  notice  of  its  meaning,  170n. 


T. 

TAILOR,  words  concerning,  274n.,  277. 
TAKEN,  meaning  of  the  term,  196.     See  Took. 
TAKING,  meaning  of  the  term,  197. 

charge  of,  when  actionable,  225,  226. 
See  Took. 
TAN-MONEY,  judicial  notice  of  meaning  of,  170n. 
TANNER,  words  of,  221  w. 
TEA,  charge  of  stealing,  225. 

TENNESSEE,  what  language  is  actionable  in,  205. 
TEXT-BOOKS,  errors  in  the  mode  of  composing,  66. 
THEATRE,  words  concerning  proprietor  of,  295. 

right  to  comment  on,  296n. 
THIEF,  charge  of  being,  when  actionable,  184m.,  197,  224. 

See  Larcent. 
THIEVING  person,  puppy,  or  rogue,  actionable,  197,  221. 
THIEVISH  KNAVE,  not  actionable,  220. 
THIEVISH  PIRATE,  actionable,  221. 
THINGS  have  no  rights  and  owe  no  duties,  84. 

language  cannot  affect,  79. 

what  is  meant  by,  305. 

language  concerning,  161,  305,  307. 


INDEX.  703 

THREATENING  LETTERS,  charge  of  sending,  197. 
THREATS,  action  for,  59«. 

TIME,  how  it  affects  the  meaning  of  language,  171. 
allegations  of,  are  divisible,  201. 
of  publication,  how  alleged,  520. 
how  proved,  585. 
of  limitation,  464, 
TINKER,  a  rogue  by  statute,  258?*. 
TITLE,  slander  of,  included  in  language  concerning  things,  162. 

See  Slander  of  Title. 
TONGUE,  the  iniquity  of  the,  58rc. 
TOOK  construed  to  mean  stole,  225,  227n. 

See  Taken. 
TORT  and  crime,  difference  between,  86,  145>j. 

See  Wrong. 
TORY,  charge  of  being,  is  actionable,  247. 
TOWERING  PASSION,  charging  a  minister  with  entering  a  pulpit  in 

a,  actionable,  286. 
TOWN  CLERK,  words  concerning,  288. 
TOWN  MEETING,  proceedings  at,  are  privileged,  379n.,  380. 
TRADE,  language  concerning  one  in  trade  may  be  actionable,  which 
not  actionable  if  concerning  an  individual  as  such,  164,  254. 
humility  of,  no  obstacle  to  right  of  action,  258/*. 
must  be  a  lawful  one,  259,  568. 
words  concerning  one  in,  267,  207. 
presumption  of  continuance  in,  268. 
being  in,  stands  in  place  of  special  damage,  256/i. 
business  includes,  257». 

See  Tradesman. 
TRADESMAN,  words  of,  403,  175». 

law  is  tender  of  the  reputation  of,  256n. 

charge  of  keeping  false  books,  265. 

charge  of  being  bankrupt  or  insolvent,  273. 

charge  of  fraud  by,  276. 

charge  of  ignorance,  281,  283. 

saying  that  his  checks  were  dishonored,  actionable,  275. 

can  not  have  an  action  for  words  published  concerning  the 

article  in  which  he  deals,  306. 
right  of  customer  to  complain  of,  414. 
See  Upholsterer. 
TRAIL-BASTON,  outlaws  song  of,  136n. 
TRAITOR,  actionable,  236. 
TRAITOR  KNAVE,  actionable,  220. 


704  INDEX. 

TRAITOROUS  KNAVE,  actionable,  220. 

TRANSACTION,  what  is  a,  84. 

TRANSPORTABLE  OFFENSE,  charge  of  committing,  actionable,  237. 

TRANSPORTATION,  what  amounts  to  a  charge  of  crime  punishable 

by,  199. 
TREASON,  overt  act  necessary  to,  62. 
TREASURY,  charge  of  robbing  the,  226,  240. 
TREE,  charge  of  stealing,  196. 
TRESPASS,  charge  of,  not  actionable,  209k. 
words  do  not  amount  to,  58k. 

See  Malicious  Trespass. 
TRIAL,  place  of,  465. 

of  issues  in  action  for  slander  or  libel,  471. 
when  judge  may  refuse  to  try,  472. 
proceedings  on,  472,  552k. 
right  to  begin  on,  472. 

opening  and  summing  up  of  counsel  on,  473. 
reading  publication  on,  474. 
evidence  on,  475. 
abandoning  defense  on,  475,  608. 
aggravating  damages  by  proceedings  on,  608,  473. 
province  of  court  and  jury  on,  4~i">. 
aggravating  damages  by  mode  of  conducting,  473. 
abandoning  one  or  more  causes  of  action  un,  475. 
TRUCKMASTER,  meaning  of,  170».,  592n. 
TRUST.     See  Breach  of  Trust,  Public  Trust. 
TRUTH,  is  a  justification  of  slander  or  libel,  327, 116. 

not  a  justification  for  writing  defamatory  matter  on  plaintiff's 

documents,  328,  329. 
defense  of,  must  be  pleaded,  621. 
pardon  no  answer  to  defense  of,  328k. 
effect  of  establishing  defense  of,  32?k. 
justification  on  ground  of,  must  be  as  broad  as  the  charge,  and 

of  the  very  charge,  331,  550. 
justification   on   ground   of,   need    go    no    further    than   the 

charge,  338. 
should  extend  to  every  part  of  the  defamatory  matter,  which 

can  form  a  substantive  ground  of  action,  339/i. 
justification  of  charge  of  perjury,  333k.,  335k.,  340. 
justification  must  be  of  the  meaning   assigned  by  the   innu- 
endo, 341,  333k.,  340,  551. 
belief  in  truth,  no  defense,  342. 
requisites  of  plea  of,  341k.,  550. 


INDEX. 


705 


TRUTH— continued. 

in  mitigation,  621. 

provisions  of  N.  Y.  Constitution  as  to  defense  of  truth  do  not 
apply  to  civil  actions,  ! 


u 

UNCHASTITY,  charge  of,  when  actionable,  206,  233,  249,  272. 
UNDERSHERIFF,  words  concerning,  288. 

UNLAWFUL  SALE  of  intoxicating  liquors,  justifying  a  charge  of,  334. 
UNNATURAL  OFFENSE,  what  amounts  to  a  charge  of,  168/*.,  198. 

charge  of,  when  actionable,  206,  238. 

charge  of,  not  actionable,  215. 

justifying  charge  of  committing,  335. 
UNSEA  WORTHY.     See  Ship. 

DNSKILLFULNESS,  charge  of,  when  actionable,  281,  283. 
UNTRUTHFULNESS,  charging  a  schoolmistress  with,  actionable,  272. 

See  Falsehood. 
UPHOLSTERER,  words  of,  Hon. 


V 

VAGABOND,  charge  of  being  a,  not  actionable,  239. 
VAGRANT,  charge  of  being,  is  actionable,  237. 

is  not  actionable,  239. 
VARIANCE,  as  to  words  published  in  a  foreign  tongue,  524. 
in  New  York,  when  material,  565. 
what  will  amount  to,  565. 

instances  of  immaterial  variance,  569.  . 

instances  of  material  variance,  572,  642. 
VARLET,  charge  of  being,  not  actionable,  240,  270». 
VENEREAL  DISEASE,  charge  of  having,  is  actionable,  242. 
VENUE,  in  actions  for  slander  and  libel,  465. 
change  of,  4(56. 

cannot  be  objected  to,  after  judgment  by  default,  470ra. 
VERDICT,  construction  after,  184. 

effect  of,  on  the  costs  to  be  considered,  486. 
on  one  of  several  counts,  491. 
setting ^aside,  for  excessive  damages,  492.     . 
setting  aside,  for  insufficient  damages,  493. 
setting  aside,  as  against  evidence,  495,  114/1. 

46 


706  INDEX. 

VERMONT,  no  new  trial  in,  because  verdict  against  weight  of  evi- 
dence, 114n. 
VESTRY  MEETING,  report  of  proceedings  at,  not  privileged,  381. 
VILLAIN,  charge  of  being,  held  actionable,  237.  279,  237w. 

not  actionable,  240. 
actionable,  if  in  writing,  247. 
VINDICTIVE  DAMAGES,  when  allowed,  489. 
VIOLENT  CONDUCT,  what  a  justification  of  a  charge  of,  332. 

See  Conduct. 
VIRGINIA,  what  language  is  actionable  in,  205. 

charge  of  stealing  in,  213n. 
VOLUNTARY  act,  what  is,  118. 

affidavit,  not  a  judicial  proceeding,  641. 
statement,  proof  of  good  faith  of,  423. 
VOTE,  charge  of  fraudulently  destroying,  is  actionable.  238. 

false  declaration  of  right  to,  involves  moral  turpitude,  209. 
VOTER,  charge  against,  of  false  swearing  at  an  election,  231. 
charge  of  voting  twice,  is  actionable,  248. 
words  which  deter  him  from  voting,  are  actionable,  264?i. 


w 

WAR.     See  Secretary  of  War. 
WARD  BEADLE,  liable  to  action  for  slander,  361  n. 
WATCHMAKER,  words  concerning,  283. 
WEAVER,  words  of,  225,  276. 
WEIGHT.     See  False  Weight. 

WHIPPING  wife  or  mother,  charge  of,  not  actionable,  241. 
WHORE,  what  amounts  to  a  charge  of  being  a,  198. 
.    charge  of  being  when  actionable,  205,  233. 
of  keeping  company  with,  2S4/<. 
justifying  charge  of,  333m.,  334>*. 

See  Common  Whore,  Prostitute. 
WHOREDOM,  what  implies  a  charge  of,  198w. 

words  imputing,  when  actionable,  206. 
WHOREHOUSE,  equivalent  to  bawdy  house,  188. 

charge  of  keeping,  is  actionable,  237. 
WHOREMASTER,  charge  of  being,  not  actionable,  240,284. 
WHOREMONGER,  charge  of  being,  is  actionable,  238. 
WICKED  MAN,  applied  to  a  bishop,  actionable,  285?;. 
WIDOWER,  words  concerning,  294. 


INDEX.  707 

WIFE,  when  letters  to,  not  privileged,  389/;. 

charge  of  whipping,  not  actionable,  241. 
loss  of,  is  special  damage,  293. 

See  Husband  and  Wife,  Married  Woman. 
WILD  BEES,  charge  of  stealing,  196. 
WILLFUL  MISCONDUCT,  justifying  charge  of,  338. 
WILL,  charge  of  destroying,  not  actionable,  215. 

libeller  could  not  make  nor  take  under,  247?i.    . 
publication  of  defamatory  matter  in,  137>*. 
suppression  of  defamatory  matter  in,  646. 
WITCH,  charge  of  being,  not  actionable,  240. 

WITNESS,  cannot  be  asked  how  he  understood  the  language  published, 
140,  166n.,  178«.,  592. 
action  of  slander,  for  words  spoken  as,  353. 
opinion  of,  as  to  meaning,  not  allowed,  166n.,  592. 
when  he  may  refuse  to  testify,  588. 
commission  to  examine,  471. 
defendant  as  a,  467,  588ft. 
charging  with  false  swearing,  232. 
subject  of  criticism,  448. 
WITTOLL,  import  of  the  term,  247ft. 
WOMAN,  charge  of  being  a  man,  actionable,  294«. 
See  Female,  Hermaphrodite. 
WOOD,  charge  of  stealing,  195. 
WOOLCOMBER,  judicial  notice  of  meaning  of,  170?i. 
WOOLSTAPLERS,  words  of,  261. 
WORDS,  a  cause  of  mischief,  57/*. 
are  acts,  58h. 
action  on  the  case  for,  93. 
the  phrase,  action  for,  71  ft. 
may  be  divided  into  three  classes,  159?*. 
imputing  crime,  must  be  precise,  168ft. 
mean  written  or  spoken  words,  203. 
action  for,  compared  to  action  for  nuisance,  57ft. 
meaning  of,  how  affected  by  circumstances,  160/i.,  170ft. 
if  unambiguous  cannot  be  treated  as  ambiguous,  161ft. 
when  no  interpretation  of  allowred,  161ft. 
how  construed  on  demurrer,  252. 
See  Actionable  Language,  Adjective  Words,  Language, 
Slanderous  Words. 
WORKMEN.     Action  for  threatening,  59ft. 
WRITTEN  LANGUAGE,  what  it  includes,  58. 

greater   capacity   for    injury,  than  has  oral 
language,  67. 


708  INDEX. 

WRITTEN  LANGUAGE— continued. 

not  construed  differently  from  oral  language,  165. 
what  actionable,  245. 
WRITS,  commencement  of  action  by,  92. 

See  Original  Writ,  Inquiry. 
WRITING,  is  written  language,  58. 
what  it  includes,  58,  59. 
joint  publication  of,  152. 

distinction  between  what  is  written,  and  the  writing,  140. 
150. 

See  Publication, 
WRONG,  is  not  the  opposite  to  a  right,  83. 
what  amounts  to,  85,  203. 
how  to  determine  what  is,  86. 
kinds  of,  86. 
description  of,  87. 

not  proper  to  say  law  prohibits,  89. 
redress  of,  90,  91. 

only  a  wrongful  act  can  amount  to,  109. 
what  is  the  essential  element  of,  109. 
cannot  be  done  as  agent,  11  Ira. 
elements  of,  126. 
committed  out  of  the  State,  145. 
actions  for,  die  with  the  person,  498. 
WRONGFUL  ACT,  what  is,  108. 

is  prima  facie  a  wrong,  109. 
liability  for,  110,  111. 


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